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QUINN, COMMISSIONER, CHICAGO FIRE DEPARTMENT v. MUSCARE No. 75-130. Argued March 30, 1976 Decided May 3, 1976 William R. Quinlan argued the cause for petitioner. With him on the briefs were Daniel Pascóle and Edmund Hatfield. Linda R. Hirshman argued the cause for respondent. With her on the brief was Robert S. Sugarman. Briefs of amici curiae urging affirmance were filed by Michael P. Bucklo and David A. Goldberger for the Illinois Division of the American Civil Liberties Union; by Jerry D. Anker for the Coalition of American Public Employees; and by Victor J. Cacciatore for the Chicago Patrolmen’s Assn. J. Albert Woll, Robert C. Mayer, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae. Per Curiam. The respondent, a lieutenant in the Chicago Fire Department, was suspended from his job for a 29-day period in 1974 as a result of charges related to his violation of the department’s personal-appearance regulation. Following the suspension, the respondent brought an action in the United States District Court for the Northern District of Illinois seeking an injunction and backpay on the ground that the regulation infringed his constitutional right to determine “the details of his personal appearance.” The department defended the challenged regulation as a safety measure designed to insure proper functioning of gas masks worn by firefighters and as a means of promoting discipline in the department and .the uniform, well-groomed appearance of its members. After a hearing focusing on the operation of the self-contained breathing apparatus used by members of the department, the District Court found that the personal-appearance regulation was justified “on safety grounds” and that the respondent’s goatee violated the regulation. Explaining that the other regulations cited in the discharge notice were not “relevant or pertinent to the issues,” the court denied the respondent’s motion for injunctive relief. The Court of Appeals for the Seventh Circuit reversed, holding that the respondent “was suspended without procedural due process.” The appellate court concluded that the Constitution requires “that some opportunity to respond to charges against him be made available to the governmental employee prior to disciplinary action against him.” The Court of Appeals did not dispute the District Court’s determination that “the only issue” was whether the suspension for having a goatee was “justifiable under the circumstances.” Although it did not reach the merits of the respondent’s challenge to the constitutionality of the hair regulation, the Court of Appeals did note that the regulation “does not appear to be co-extensive with the need for safe and efficient use of gas masks and, if that is the sole justification, might well be more narrowly drawn.” Following the grant of certiorari and the oral argument in this case, this Court in another case upheld a police department hair regulation similar to that challenged by the respondent in the present litigation. Kelley v. Johnson, ante, p. 238. In that ease, we concluded that “the overall need for discipline, esprit de corps, and uniformity” defeated the policeman’s “claim based on the liberty guaranty of the Fourteenth Amendment.” Ante, at 246, 248. Kelley v. Johnson renders immaterial the District Court’s factual determination regarding the safety justification for the department’s hair regulation about which the Court of Appeals expressed doubt. Moreover, after the grant of certiorari, this Court was informed that the Civil Service Commission of the city of Chicago had revised its rules to provide for pre-suspension hearings in all nonemergency cases. While this voluntary rule change was subject to rescission, counsel for the petitioner candidly advised the Court at oral argument that even if the petitioner should prevail, it was very doubtful that the Commission would revert to its former suspension procedures. In view of these developments, the writ of certiorari is dismissed as improvidently granted. So ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. The personal-appearance regulation provided: “All members of the Chicago Fire Department shall present a clean and proper appearance in personal care and attire at all times. The face shall be clean-shaven, except that a non-eccentric mustache is permissible. Mustaches shall not extend beyond a line perpendicular to the comer of the mouth and the full upper lip must be readily visible. Sideburns shall be trimmed short and shall be no lower than a line from the middle of the ear. “Hair shall be worn neatly and closely trimmed, and the hair outline shall follow the contour of the ear and slope to the back of the neck. It will be gradually tapered overall, in order to present a neat appearance.” § 51.133 of the Rules and Regulations of the Chicago Fire Department. The respondent was also charged with conduct unbecoming a member of the Chicago Fire Department, § 61.001, and disobedience of orders, § 61.006, in connection with his failure to conform his appearance to the above regulation. The respondent contended that the personal-appearance regulation violated his “rights to personal freedom guaranteed by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.” In addition, he claimed that the regulation proscribing conduct unbecoming a member of the department was vague and overbroad and that his suspension without a prior hearing was unconstitutional. Although the respondent had not been afforded a pre-suspension hearing he had a right to a post-suspension hearing before the Civil Service Commission. The Commission was empowered to award backpay and to order the deletion of the suspension from the employee’s service record. Although the new rule was adopted in August 1975, before the grant of certiorari on October 14, 1975, it was first brought to our attention in the respondent’s brief filed on February 4, 1976. The revised procedures providing an opportunity for a pre-suspension hearing apply to all Chicago civil service employees except members of the police department, who are governed by a different set of similar rules.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
BAZLEY v. COMMISSIONER OF INTERNAL REVENUE. NO. 287. Argued January 10,1947. — Decided June 16, 1947. Sydney A. Guthin argued the cause and filed a brief for petitioner in No. 209. Henry S. Drinker argued the cause for petitioner in No. 287. With him on the brief were Frederick E. S. Morrison and Calvin H. Rankin. J. Louis Monarch argued the cause for respondent. With him on the brief were Acting Solicitor General Washington, Sewall Key, Arnold Raum and L. W. Post. Mr. Justice Frankfurter delivered the opinion of the Court. The proper construction of provisions of the Internal Revenue Code relating to corporate reorganizations is involved in. both these cases. Their importance to the Treasury as well as to corporate enterprise led us to grant certiorari, 329 U. S. 695, 329 U. S. 701. While there are differences in detail to which we shall refer, the two cases may be disposed of in one opinion. In the Bazley case, No. 287, the Commissioner of Internal Revenue assessed an income tax deficiency against the taxpayer for the year 1939. Its validity depends on the legal significance of the recapitalization in that year of a family corporation in which the taxpayer and his wife owned all but one of the Company’s one thousand shares. These had a par value of $100. Under the plan of reorganization the taxpayer, his wife, and the holder of the additional share were to turn in their old shares and receive in exchange for each old share five new shares of no par value, but of a stated value of $60, and new debenture bonds, having a total face value of $400,000, payable in ten years but callable at any time. Accordingly, the taxpayer received 3,990 shares of the new stock for the 798 shares of his old holding and debentures in the amount of $319,200. At the time of these transactions the earned surplus of the corporation was $855,783.82. The Commissioner charged to the taxpayer as income the full value of the debentures. The Tax Court affirmed the Commissioner’s determination, against the taxpayer’s contention that as a “recapitalization” the transaction was a tax-free “reorganization” and that the debentures were “securities in a corporation a party to a reorganization,” “exchanged solely for stock or securities in such corporation” “in pursuance of the plan of reorganization,” and as such no gain is recognized for income tax purposes. Internal Revenue Code, §§ 112 (g) (1) (E) and 112 (b) (3). The Tax Court found that the recapitalization had “no legitimate corporate business purpose” and was therefore not a “reorganization” within the statute. The distribution of debentures, it concluded, was a disguised dividend, taxable as earned income under §§22 (a) and 115 (a) and (g). 4 T. C. 897. The Circuit Court of Appeals for the Third Circuit, sitting en banc, affirmed, two judges dissenting. 155 F. 2d 237. Unless a transaction is a reorganization contemplated by § 112 (g), any exchange of “stock or securities” in connection with such transaction, cannot be “in pursuance of the plan of reorganization” under § 112 (b) (3). While § 112 (g) informs us that “reorganization” means, among other things, “a recapitalization,” it does not inform us what “recapitalization” means. “Recapitalization” in connection with the income tax has been part of the revenue laws since 1921. 42 Stat. 227, 230, § 202 (c) (2). Congress has never defined it and the Treasury Regulations shed only limited light. Treas. Reg. 103, § 19.112 (g). One thing is certain. Congress did not incorporate some technical concept, whether that of accountants or of other specialists, into § 112 (g), assuming that there is agreement among specialists as to the meaning of recapitalization. And so, recapitalization as used in § 112 (g) must draw its meaning from its function in that section. It is one of the forms of reorganization which obtains the privileges afforded by § 112 (g). Therefore, “recapitalization” must be construed with reference to the presuppositions and purpose of § 112 (g). It was not the purpose of the reorganization provision to exempt from payment of a tax what as a practical matter is realized gain. Normally, a distribution by a corporation, whatever form it takes, is a definite and rather unambiguous event. It furnishes the proper occasion for the determination and taxation of gain. But there are circumstances where a formal distribution, directly or through exchange of securities, represents merely a new form of the previous participation in an enterprise, involving no change of substance in the rights and relations of the interested parties one to another or to the corporate assets. As to these, Congress has said that they are not to be deemed significant occasions for determining taxable gain. These considerations underlie § 112 (g) and they should dominate the scope to be given to the various sections, all of which converge toward a common purpose. Application of the language of such a revenue provision is not an exercise in framing abstract definitions. In a series of cases this Court has withheld the benefits of the reorganization provision in situations which might have satisfied provisions of the section treated as inert language, because they were not reorganizations of the kind with which § 112, in its purpose and particulars, concerns itself. See Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U. S. 462; Gregory v. Helvering, 293 U. S. 465; LeTulle v. Scofield, 308 U. S. 415. Congress has not attempted a definition of what is recapitalization and we shall follow its example. The search for relevant meaning is often satisfied not by a futile attempt at abstract definition but by pricking a line through concrete applications. Meaning frequently is built up by assured recognition of what does not come within a concept the content of which is in controversy. Since a recapitalization within the scope of § 112 is an aspect of reorganization, nothing can be a recapitalization for this purpose unless it partakes of those characteristics of a reorganization which underlie the purpose of Congress in postponing the tax liability. No doubt there was a recapitalization of the Bazley corporation in the sense that the symbols that represented its capital were changed, so that the fiscal basis of its operations would appear very differently on its books. But the form of a transaction as reflected by correct corporate accounting opens questions as to the proper application of a taxing statute; it does not close them. Corporate accounting may represent that correspondence between change in the form of capital structure and essential identity in fact which is of the essence of a transaction relieved from taxation as a reorganization. What is controlling is that a new arrangement intrinsically partake of the elements of reorganization which underlie the Congressional exemption and not merely give the appearance of it to accomplish a distribution of earnings. In the case of a corporation which has undistributed earnings, the creation of new corporate obligations which are transferred to stockholders in relation to their former holdings, so as to produce, for all practical purposes, the same result as a distribution of cash earnings of equivalent value, cannot obtain tax immunity because cast in the form of a recapitalization-reorganization. The governing legal rule can hardly be stated more narrowly. To attempt to do so would only challenge astuteness in evading it. And so it is hard to escape the conclusion that whether in a particular case a paper recapitalization is no more than an admissible attempt to avoid the consequences of an outright distribution of earnings turns on details of corporate affairs, judgment on which must be left to the Tax Court. See Dobson v. Commissioner, 320 U. S. 489. What have we here? No doubt, if the Bazley corporation had issued the debentures to Bazley and his wife without any recapitalization, it would have made a taxable distribution. Instead, these debentures were issued as part of a family arrangement, the only additional ingredient being an unrelated modification of the capital account. The debentures were found to be worth at least their principal amount, and they were virtually cash because they were callable at the will of the corporation which in this case was the will of the taxpayer. One does not have to pursue the motives behind actions, even in the more ascertainable forms of purpose, to find, as did the Tax Court, that the whole arrangement took this form instead of an outright distribution of cash or debentures, because the latter would undoubtedly have been taxable income whereas what was done could, with a show of reason, claim the shelter of the immunity of a recapitalization-reorganization . The Commissioner, the Tax Court and the Circuit Court of Appeals agree that nothing was accomplished that would not have been accomplished by an outright debenture dividend. And since we find no misconception of law on the part of the Tax Court and the Circuit Court of Appeals, whatever may have been their choice of phrasing, their application of the law to the facts of this case must stand. A “reorganization” which is merely a vehicle, however elaborate or elegant, for conveying earnings from accumulations to the stockholders is not a reorganization under § 112. This disposes of the case as a matter of law, since the facts as found by the Tax Court bring them within it. And even if this transaction were deemed a reorganization, the facts would equally sustain the imposition of the tax on the debentures under § 112 (c) (1) and (2). Commissioner v. Estate of Bedford, 325 U. S. 283. In the Adams case, No. 209, the taxpayer owned all but a few of the 5914 shares of stock outstanding out of an authorized 6000, par value $100. By a plan of reorganization, the authorized capital was reduced by half, to $295,700, divided into 5914 shares of no par value but having a stated value of $50 per share. The 5914 old shares were cancelled and the corporation issued in exchange therefor 5914 shares of the new no-par common stock and 6 per cent 20 year debenture bonds in the principal amount of $295,700. The exchange was made on the basis of one new share of stock and one $50 bond for each old share. The old capital account was debited in the sum of $591,400, a new no-par capital account was credited with $295,700, and the balance of $295,700 was credited to a “Debenture Payable” account. The corporation at this time had accumulated earnings available for distribution in a sum not less than $164,514.82, and this account was left unchanged. At the time of the exchange, the debentures had a value not less than $164,208.82. The Commissioner determined an income tax deficiency by treating the debenture bonds as a distribution of the corporation’s accumulated earnings. The Tax Court sustained the Commissioner’s determination, 5 T. C. 351, and the Circuit Court of Appeals affirmed. 155 F. 2d 246. The case is governed by our treatment of the Bazley case. The finding by the Tax Court that the reorganization had no purpose other than to achieve the distribution of the earnings, is unaffected by the bookkeeping detail of leaving the surplus account unaffected. See § 115 (b), and Commissioner v. Wheeler, 324 U. S. 542, 546. Other claims raised have been considered but their rejection does not call for discussion. Judgments affirmed. Mr. Justice Douglas and Mr. Justice Burton dissent in both cases for the reasons stated in the joint dissent of Judges Maris and Goodrich in the court below. Bazley v. Commissioner, 155 F. 2d 237, 244.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
AMERICAN POWER & LIGHT CO. v. SECURITIES & EXCHANGE COMMISSION. NO. 4. Argued November 16, 1945. Reargued October 14, 15, 1946.— Decided November 25, 1946. Arthur A. Ballantine and John F. MacLane argued the cause for petitioner in No. 4 on the original argument, and Mr. Ballantine on the reargument. With them on the briefs were Frank A. Reid, Wilkie Bushby and Joseph Schreiber. Daniel James argued the cause for petitioner in No. 5. With him on the briefs were John F. MacLane, Frank A. Reid and John W. Nields. Roger S. Foster argued the cause for respondent. With him on the brief were Solicitor General McGrath, Paul A. Freund, Milton V. Freeman, Morton E. Yohalem and David Ferber. Percival E. Jackson filed a brief for the Holders of Preferred Stock of Electric Power & Light Corporation, as amicus curiae, urging affirmance. Mr. Justice Murphy delivered the opinion of the Court. We are concerned here with the constitutionality of § 11 (b) (2) of the Public Utility Holding Company Act of 1935 and its application to the petitioners, the American Power & Light Company and the Electric Power & Light Corporation. American and Electric are two of the subholding companies in the Electric Bond and Share Company holding company system, certain aspects of which were considered by this Court in Electric Bond & Share Co. v. S. E. C., 303 U. S. 419. This system is a pyramid-like structure of which Bond and Share itself constitutes the apex, five sub-holding companies (including American and Electric) create an intermediate tier, and approximately 237 direct and indirect subsidiaries of the latter form the base. From the standpoint of book capitalization and assets, number of customers and areas served by the operating companies, and quantity of electricity generated and gas sold, the Bond and Share system constitutes the largest single public utility holding company system registered under the Act. The proceeding now under review was instituted by the Securities and Exchange Commission under § 11 (b) (2) of the Act. After appropriate notice and hearing, the Commission found that the corporate structure and continued existence of American and Electric unduly and unnecessarily complicated the Bond and Share system and unfairly and inequitably distributed voting power among the security holders of that system, in violation of the standards of § 11 (b) (2). 11 S. E. C. 1146. Orders were accordingly entered requiring the dissolution of both American and Electric and requiring them to submit plans for the effectuation of these orders. The First Circuit Court of Appeals sustained the Commission's action in all respects and affirmed its orders, while refusing to consider certain contentions of American and Electric which had not been raised before the Commission. 141 F. 2d 606. We granted certiorari because of the obvious public importance of the issues presented. 326 U. S. 846. I. At the outset, we reject the claim that § 11 (b) (2), viewed from the standpoint of the commerce clause, is unconstitutional. So far as here pertinent, § 11 (b) (2) directs the Securities and Exchange Commission, as soon as practicable after January 1, 1938, “To require by order, after notice and opportunity for hearing, that each registered holding company, and each subsidiary company thereof, shall take such steps as the Commission shall find necessary to ensure that the corporate structure or continued existence of any company in the holding-company system does not unduly or unnecessarily complicate the structure, or unfairly or inequitably distribute voting power among security holders, of such holding-company system.... Except for the purpose of fairly and equitably distributing voting power among the security holders of such company, nothing in this paragraph shall authorize the Commission to require any change in the corporate structure or existence of any company which is not a holding company, or of any company whose principal business is that of a public-utility company.” Like § 11 (b) (1), its statutory companion, § 11 (b) (2) applies only to registered holding companies and their subsidiaries. We noted in North American Co. v. S. E. C., 327 U. S. 686, 698, that by making certain interstate transactions unlawful unless a holding company registers with the Commission, § 4 (a), and by extending § 11 (b) (1) to registered holding companies, Congress has effectively applied § 11 (b) (1) to those holding companies that are in fact in the stream of interstate activity or that affect commerce in more states than one. The identical observations can be made as to § 11 (b) (2). Its impact is likewise limited, by reference to the registration requirements, to those holding companies which depend for their very existence upon the constant and systematic use of the mails and the instrumentalities of interstate commerce. Effect is thereby given to the legislative policy set forth in § 1 (c) of interpreting all provisions of the Act to meet the problems and to eliminate the evils “connected with public-utility holding companies which are engaged in interstate commerce or in activities which directly affect or burden interstate commerce.” The Bond and Share system, including American and Electric, possesses an undeniable interstate character which makes it properly subject, from the statutory standpoint, to the provisions of § 11 (b) (2). This vast system embraces utility properties in no fewer than 32 states, from New Jersey to Oregon and from Minnesota to Florida, as well as in 12 foreign countries. Bond and Share dominates and controls this system from its headquarters in New York City. As was the situation in the North American case, the proper control and functioning of such an extensive multi-state network of corporations necessitates continuous and substantial use of the mails and the instrumentalities of interstate commerce. Only in that way can Bond and Share, or its subholding companies or service subsidiary, market and distribute securities, control and influence the various operating companies, negotiate inter-system loans, acquire or exchange property, perform service contracts, or reap the benefits of stock ownership. See § 1(a). See also International Textbook Co. v. Pigg, 217 U. S. 91. Moreover, many of the operating companies on the lower echelon sell and transmit electric energy or gas in interstate commerce to an extent that cannot be described as spasmodic or insignificant. Electric Bond & Share Co. v. S. E. C., supra, 432-33. Such activities serve to augment the interstate nature of the Bond and Share system. And they make even plainer the fact that this system falls within the intended scope of § 11 (b) (2). Congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils. North American Co. v. S. E. C., supra; United States v. Darby, 312 U. S. 100; Brooks v. United States, 267 U. S. 432. Thus to the extent that corporate business is transacted through such channels, affecting commerce in more states than one, Congress may act directly with respect to that business to protect what it conceives to be the national welfare. It may prescribe appropriate regulations and determine the conditions under which that business may be pursued. It may compel changes in the voting rights and other privileges of stockholders. It may order the divestment or rearrangement of properties. It may order the reorganization or dissolution of corporations. In short, Congress is completely uninhibited by the commerce clause in selecting the means considered necessary for bringing about the desired conditions in the channels of interstate commerce. Any limitations are to be found in other sections of the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196. Since the mandates of § 11 (b) (2) are directed solely to public utility holding company systems that use the channels of interstate commerce, the validity of that section under the commerce clause becomes apparent. It is designed to prevent the use of those channels to propagate and disseminate the evils which had been found to flow from unduly complicated systems and from inequitable distributions of voting power among security holders of the systems. Such evils are so inextricably entwined around the interstate business of the holding company systems as to present no serious question as to the power of Congress under the commerce clause to eradicate them. In the extensive studies which preceded the passage of the Public Utility Holding Company Act, it had been found that “The most distinctive characteristic, and perhaps the most serious defect of the present form of holding-company organization is the pyramided structure which is found in all of the important holding-company groups examined.” The pyramiding device in its most common form consisted of interposing one or more subholding companies between the holding company and the operating companies and issuing, at each level of the structure, different classes of stock with unequal voting rights. Most of the financing of the various companies in the structure occurred through the sale to the public of bonds and preferred stock having low fixed returns and generally carrying no voice in the managements. Under such circumstances, a relatively small but strategic investment in common stock (with voting privileges) in the higher levels of a pyramided structure often resulted in absolute control of underlying operating companies with assets of hundreds of millions of dollars. A tremendous “leverage” in relation to that stock was thus produced; the earnings of the top holding company were greatly magnified by comparatively small changes in the earnings of the operating companies. The common stock of the top holding company might quickly rise in value and just as quickly fall, making it a natural object for speculation and gambling. In many instances this created financially irresponsible managements and unsound capital structures. Public investors in such stock found themselves the innocent victims, while those who supplied most of the capital through the purchase of bonds and preferred stock likewise suffered in addition to being largely disfranchised. Prudent management of the operating companies became a minor consideration, with pressure being placed on them to sustain the excessive capitalization to the detriment of their service to consumers. Reduction of rates was firmly resisted. The conclusion was accordingly reached by those making the studies that the highly pyramided system “is dangerous and has no justification for existence” and “represents the holding-company system at its worst.” Such was the general nature of the problem to which Congress addressed itself in§ll(b)(2). Various abuses traceable in substantial measure to the use of the pyramiding device were enumerated in § 1 (b). And it was specifically found in § 1 (b) (3) that the national public interest and the interests of the investors and consumers are or may be adversely affected “when control of such [subsidiary] companies is exerted through disproportionately small investment.” The problem which underlies § 11 (b) (2), therefore, deals with the very essence of holding company systems. Their pyramided structures and the resulting abuses, like their other characteristics, rest squarely upon an extensive use of the mails and the instrumentalities of interstate commerce. Conversely, every interstate transaction of such systems is impregnated in one degree or another with the effects of complicated corporate structures and inequitable distributions of voting power. Many of these effects may be intangible and indistinct, but they are nonetheless real. To deny that Congress has power to eliminate evils connected with pyramided holding company systems, evils which have been found to be promoted and transmitted by means of interstate commerce, is to deny that Congress can effectively deal with problems concerning the welfare of the national economy. We cannot deny that power. Rather we reaffirm once more the constitutional authority resident in Congress by virtue of the commerce clause to undertake to solve national problems directly and realistically, giving due recognition to the scope of state power. That follows from the fact that the federal commerce power is as broad as the economic needs of the nation. North American Co. v. S. E. C., supra. II. We likewise reject the claim that § 11 (b) (2) constitutes an unconstitutional delegation of legislative power to the Securities and Exchange Commission because of an alleged absence of any ascertainable standards for guidance in carrying out its functions. Section 11 (b) (2) itself provides that the Commission shall act so as to ensure that the corporate structure or continued existence of any company in a particular holding company system does not “unduly or unnecessarily complicate the structure” or “unfairly or inequitably distribute voting power among security holders.” It is argued that these phrases are undefined by the Act, are legally meaningless in themselves and carry with them no historically defined concepts. As a result, it is said, the Commission is forced to use its unlimited whim to determine compliance or non-compliance with § 11 (b) (2); and in framing its orders, the Commission has unfettered discretion to decide whose property shall be taken or destroyed and to what extent. Objection is also made on the score that no standards have been developed or announced by the Commission which justify its action in this case. These contentions are without merit. Even standing alone, standards in terms of unduly complicated corporate structures and inequitable distributions of voting power cannot be said to be utterly without meaning, especially to those familiar with corporate realities. But these standards need not be tested in isolation. They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear. See Intermountain Rate Cases, 234 U. S. 476. From these sources — from the manifold evils revealed by the legislative investigations, the express recital of evils in § 1 (b) of the Act, the general policy declarations of Congress in § 1 (c), the standards for new security issues set forth in § 7, the conditions for acquisitions of properties and securities prescribed in § 10, and the nature of the inquiries contemplated by § 11 (a) — a veritable code of rules reveals itself for the Commission to follow in giving effect to the standards of § 11 (b) (2). These standards are certainly no less definite in nature than those speaking in other contexts in terms of “public interest,” “just and reasonable rates,” “unfair methods of competition” or “relevant factors.” The approval which this Court has given in the past to those standards thus compels the sanctioning of the ones in issue. See New York Central Securities Corp. v. United States, 287 U. S. 12, 24-25; Yakus v. United States, 321 U. S. 414, 419-27, and cases cited. The judicial approval accorded these “broad” standards for administrative action is a reflection of the necessities of modern legislation dealing with complex economic and social problems. See Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 398. The legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are protected by access to the courts to test the application of the policy in the light of these legislative declarations. Such is the situation here. Under these circumstances, it is of no constitutional significance that the Commission, in executing the policies of § 11 (b) (2), also has discretion to fashion remedies of a civil nature necessary for attaining the desired goals. See Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194. The legislative policies and standards being clear, judicial review of the remedies adopted by the Commission safeguards against statutory or constitutional excesses. Nor is there any constitutional requirement that the legislative standards be translated by the Commission into formal and detailed rules of thumb prior to their application to a particular case. If that agency wishes to proceed by the more flexible case-by-case method, the Constitution offers no obstacle. All that can be required is that the Commission’s actions conform to the statutory language and policy. III. Our decision in North American Co. v. S. E. C., supra, largely disposes of the objections to § 11 (b) (2) on the basis of the due process clause of the Fifth Amendment. Section 11 (b) (2), like § 11 (b) (1), materially affects many property interests of holding companies and their investors; it may even destroy whatever right there is to continued corporate existence on the part of a holding company that is found to complicate a system unnecessarily and to serve no useful function. But Congress carefully considered these various interests and found them “outweighed by the political and general economic desirability of breaking up concentrations of financial power in the utility field too big to be effectively regulated in the interest of either the consumer or the investor and too big to permit the functioning of democratic institutions.” It is not our function to reweigh these diverse factors or to question the conclusion reached by Congress. Nor can we say that § 11 (b) (2) on its face authorizes or necessarily involves any destruction of any valuable interests without just compensation. The legislative policy and the statutory safeguards pointed out in the North American case (pp. 709-710) negative that argument. Equally groundless is the contention that § 11 (b) (2) is void in the absence of an express provision for notice and opportunity for hearing as to security holders regarding proceedings under that section. The short answer is that such a contention can be raised properly only by a security holder who has suffered injury due to lack of notice or opportunity for hearing. No security holder of that type is now before us. The managements of American and Electric admittedly were notified and participated in the hearings as required by § 11 (b) (2); and they possess no standing to assert the invalidity of that section from the viewpoint of the security holders’ constitutional rights to notice and hearing. See Tyler v. Judges of Court of Registration, 179 U. S. 405, 410; Hatch v. Reardon, 204 U. S. 152, 160. However, the Commission in this instance actually gave all security holders of American and Electric public notice of the pendency of the § 11 (b) (2) proceedings and invited them to file applications for intervention before a stated time. This was done pursuant to § 19, which permits the Commission, in accordance with such rules and regulations as it may prescribe, to admit any representative of interested consumers or investors, or any other appropriate person, as a party to any proceeding before that body. These security holders thus received everything which the Constitution could possibly guarantee them in this respect. That the statute does not expressly insist upon what in fact has been given the security holders is without constitutional relevance under these circumstances. Wherever possible, statutes must be interpreted in accordance with constitutional principles. Here, in the absence of definite contrary indications, it is fair to assume that Congress desired that § 11 (b) (2) be lawfully executed by giving appropriate notice and opportunity for hearing to all those constitutionally entitled thereto. And when that assumption is added to the provisions of § 19, it becomes quite evident that the Commission is bound under the statute to give notice and opportunity for hearing to consumers, investors and other persons whenever constitutionally necessary. See The Japanese Immigrant Case, 189 U. S. 86, 100-101. But should the Commission neglect to follow the necessary procedure in a particular case, such failure would at most justify an objection to the administrative determination rather than to the statute itself. It would then be needless to do more than nullify the action taken in disregard of the constitutional rights to notice and opportunity for hearing. Since we do not have that situation here, however, we need only reiterate that § 11 (b) (2), fairly construed, neither expressly nor impliedly authorizes unconstitutional procedure. It is thus immune to attack on that basis. See Kentucky Railroad Tax Cases, 115 U. S. 321; Bratton v. Chandler, 260 U. S. 110; Toombs v. Citizens Bank, 281 U. S. 643. Cf. Coe v. Armour Fertilizer Works, 237 U. S. 413; Wuchter v. Pizzutti, 276 U. S. 13. IV. Turning to the Commission’s action under § 11 (b) (2) with respect to American and Electric, we find that the record amply supports the finding that their corporate structures and continued existence unduly and unnecessarily complicate the Bond and Share system and unfairly and inequitably distribute voting power among the security holders of that system. We need do no more here than state the major facts before the Commission underlying this crucial finding. Bond and Share organized these two subholding companies under the laws of Maine in 1909 and 1925, respectively. Until 1935, American and Electric had neither offices nor employees; their books were kept by Bond and Share employees in Bond and Share’s offices in New York City. Their officers were employed by and paid by Bond and Share. Their subsidiaries were managed in every detail by Bond and Share. And whenever they dealt with their parent they were represented solely by employees and counsel of Bond and Share. Functionally, the Commission found, American and Electric were mere sets of books in Bond and Share’s office. In 1935, shortly before the effective date of the Public Utility Holding Company Act, certain superficial changes were made in the organizational set-up of the Bond and Share system. A separate service subsidiary, Ebasco Services Incorporated, was created to continue functions formerly carried out by the Bond and Share service department. Each of the subholding companies, including American and Electric, was given its own set of officers and employees as well as a separate suite of offices in the Bond and Share office building. Other minor changes took place, but the system in effect continued to operate precisely as it had prior to 1935. Bond and Share still had complete and unquestioned control over American, Electric and their operating subsidiaries. There is an absence of substantial evidence that either American or Electric is presently able to perform any useful role in the operations of its subsidiaries, such as organizing them into integrated systems or furnishing them with capital or cash. Both companies currently have vast accumulations of ünpaid preferred dividends in arrears, not having been able to meet dividend requirements in the ten years preceding 1941. Instances of past functions relating to subsidiaries reveal either harmful results or the guiding hand of Bond and Share. The real purpose of American and Electric, as the Commission found, is to act as the leverage and pyramiding device whereby Bond and Share can amass control over vast sums contributed by others an,d realizé for itself large earnings and profits without proportionate investment— the prime evil at which § 11 (b) (2) is directed. Bond and Share holds 20.7% of the total voting stock of American, this holding having a book value of nearly $10,000,000 or 3.68% of American’s total capitalization of $270,000,000. Through this investment, Bond and Share controls not only American but also American’s 21 subsidiaries with a total capitalization of $729,000,000. An investment of $10,000,000 thus controls $729,000,000, a ratio of 1 to 73. Bond and Share also holds 46.8% of Electric’s total voting stock; the book equity of this holding amounts to $17,500,000 or 9.14% of Electric’s total capitalization of $192,000,000. Bond and Share is thereby enabled to control not only Electric but also Electric’s 11 direct and 11 indirect subsidiaries with a total capitalization of $654,000,000. An investment of $17,500,000 thus controls $654,000,000, a ratio of 1 to 37. The Commission, however, made alternative calculations which gave American and Electric the benefit of a more favorable assumption. It adjusted upward the book figures for Bond and Share’s common stock interests in these companies to reflect the amount by which the values on the books of the subsidiaries exceeded corresponding values at which American and Electric carried their stock interest in those subsidiaries. But even after such adjustments, Bond and Share’s investment equals only 8.2% of American’s capitalization and only 3.42% of the book values of Americans subsidiaries; and its investment in Electric is the equivalent of only 22.25% of Electric’s capitalization and 8.72 % of the book values of Electric’s subsidiaries. This disproportion between Bond and Share’s investment and the value of the property controlled is even more acute if further adjustments are made to reflect the unconscionable write-ups and inadequate depreciation which the Commission found in the book figures of the various operating companies. American and Electric disagree with many of these adjustments and urge that the book values can be justified; and complaint is made that the Commission refused to consider certain valuation testimony offered by American in this respect. We deem it unnecessary, however, to enter into these disputed matters. Even with the use of the book values, the attenuated investment ratio is such as to justify the Commission’s conclusion that Bond and Share’s control of the operating companies is achieved “through disproportionately small investment.” On that basis, over 96% of the investment in American’s subsidiaries is without effective voting representation, while over 91% of the book values of Electric’s subsidiaries is similarly disfranchised. Such evidence is more than enough to support the finding that American and Electric are but paper companies without legitimate functional purpose. They serve merely as the mechanism by which Bond and Share maintains a pyramided structure containing the seeds of all the attendant evils condemned by the Act. It was reasonable, therefore, for the Commission to conclude that American and Electric are undue and unnecessary complexities in the Bond and Share system and that their existence unfairly and inequitably distributes voting power among the security holders of the system. Y. The major objection raised by American and Electric relates to the Commission’s choice of dissolution as “necessary to ensure” that the evils would be corrected and the standards of § 11 (b) (2) effectuated. Emphasis is placed upon alternative plans which are less drastic in nature and which allegedly would meet the statutory standards. It is a fundamental principle, however, that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy “the relation of remedy to policy is peculiarly a matter for administrative competence.” Phelps Dodge Corp. v. Labor Board, supra, 194. In dealing with the complex problem of adjusting holding company systems in accordance with the legislative standards, the Commission here has accumulated experience and knowledge which no court can hope to attain. Its judgment is entitled to the greatest weight. While recognizing that the Commission’s discretion must square with its responsibility, only if the remedy chosen is unwarranted in law or is without justification in fact should a court attempt to intervene in the matter. Neither ground of intervention is present in this instance. Dissolution of a holding company or a subholding company plainly is contemplated by § 11 (b) (2) as a possible remedy. It directs the Commission to take such steps as it finds necessary to ensure that "the corporate structure or continued existence of any company in the holding-company system” does not violate the standards set forth. American and Electric argue that the phrase “in the holding-company system” limits the authority of the Commission to orders removing a particular company from the holding company system of which it is a part and does not permit an order terminating its corporate existence. Grammatically, this contention is without merit. The phrase “in the holding-company system” no more modifies “continued existence” than it does “corporate structure.” It relates, rather, to the word “company,” as though the phrase read “the corporate structure or continued existence of any company which is in the holding-company system.” Such a construction accords with the policy as well as other provisions of the Act. Section 1 (c) declares it to be one of the policies of the Act, in accordance with which all provisions shall be interpreted, “to provide as soon as practicable for the elimination of public-utility holding companies except as otherwise expressly provided in this title.” The last sentence of § 11 (b) (2) provides that “Except for the purpose of fairly and equitably distributing voting power among the security holders of such company, nothing in this paragraph shall authorize the Commission to require any change in the corporate structure or existence of any company which is not a holding company,...” Moreover, §§ 11 (f) and 11 (g) specifically refer to dissolution or plans for dissolution of registered holding companies or their subsidiaries in accordance with § 11, Such statements would be meaningless and unnecessary were dissolution not contemplated as a possible remedy under § 11 (b) (2). The legislative history supports this interpretation. The original bill which passed the Senate (S. 2796, 74th Cong., 1st Sess.) contained a provision quite similar to the present first sentence of § 11 (b) (2), except that it was mandatory that the Commission require each registered holding company and subsidiary “to be reorganized or dissolved” when the Commission found that it violated the standards of that section. In addition, § 11 (e) as then written permitted a voluntary plan “for the divestment of control, securities, or other assets, or for the reorganization or dissolution, of such company or any subsidiary company.” The bill also contained a § 11 (b) (3), providing that within five years all holding companies should cease to be holding companies unless the equivalent of a certificate of convenience and necessity were obtained from the Federal Power Commission. But the House of Representatives insisted upon the elimination of § 11 (b) (3) and the bill finally reported out by the joint conference committee deleted that provision. A further change was made at this time so that § 11 (b) (2), instead of specifying reorganization or dissolution as the remedies, gave the Commission power to require “such steps” as it might find necessary to ensure compliance. Section 11 (e) was also changed to permit a voluntary plan “for the divestment of control, securities, or other assets, or for other action by such company or any subsidiary company thereof.” Thus the compromise bill which became law omitted the unconditional provision of § 11 (b) (3) for the elimination of all holding companies within five years, substituting therefor the “great-grandfather clause” of § 11 (b) (2), and gave the Commission discretion to determine the necessary steps for compliance instead of specifying reorganization or dissolution. There is nothing to indicate that the framers of the compromise bill meant to forbid reorganization or dissolution as remedies which the Commission might choose. Indeed, the fact that these two remedies had been previously specified is strong evidence that they were in the minds of those who wrote the portion of § 11 (b) (2) now under consideration and that those persons merely wished not to restrict the Commission to those two remedies; they thus gave the Commission discretion to choose whatever remedy it felt necessary. This legislative history, when combined with the various	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 104 ]	sc_adminaction
UTAH DIVISION OF STATE LANDS v. UNITED STATES et al. No. 85-1772. Argued March 23, 1987 Decided June 8, 1987 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Powell, and Scalia, JJ., joined. White, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 209. Dallin W. Jensen, Solicitor General of Utah, argued the cause for petitioner. With him on the briefs were David L. Wilkinson, Attorney General, and Michael M. Quealy and R. Douglas Credille, Assistant Attorneys General. Edwin S. Kneedler argued the cause for respondents. With him on the brief were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, Jacques B. Gelin, and Dirk D. Snel. A brief of amici curiae urging reversal was filed for the State of Alaska et al. by Ronald W. Lorensen, Acting Attorney General of Alaska, and G. Thomas Koester, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Charles A. Graddick of Alabama, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, John Van de Kamp of California, Duane Woodard of Colorado, Jim Smith of Florida, Michael J. Bowers of Georgia, Corinne K. A. Watanabe of Hawaii, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Francis X. Bellotti of Massachusetts, Frank J. Kelley of Michigan, Edwin Lloyd Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Robert M. Spire of Nebraska, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, Paul Bardacke of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas J. Spaeth of North Dakota, Michael C. Turpén of Oklahoma, Dave Frohnmayer of Oregon, Jim Mattox of Texas, Ken Eikenberry of Washington, Charles G. Brown of West Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming. Justice O’Connor delivered the opinion of the Court. The issue in this case is whether title to the bed of Utah Lake passed to the State of Utah under the equal footing doctrine upon Utah’s admission to the Union in 1896. I-H <J The equal footing doctrine is deeply rooted in history, and the proper application of the doctrine requires an understanding of its origins. Under English common law the English Crown held sovereign title to all lands underlying navigable waters. Because title to such land was important to the sovereign’s ability to control navigation, fishing, and other commercial activity on rivers and lakes, ownership of this land was considered an essential attribute of sovereignty. Title to such land was therefore vested in the sovereign for the benefit of the whole people. See Shively v. Bowlby, 152 U. S. 1, 11-14 (1894). When the 13 Colonies became independent from Great Britain, they claimed title to the lands under navigable waters within their boundaries as the sovereign successors to the English Crown. Id., at 15. Because all subsequently admitted States enter the Union on an “equal footing” with the original 13 States, they too hold title to the land under navigable waters within their boundaries upon entry into the Union. Pollard’s Lessee v. Hagan, 3 How. 212 (1845). In Pollard’s Lessee this Court announced the principle that the United States held the lands under navigable waters in the Territories “in trust” for the future States that would be created, and in dicta even suggested that the equal footing doctrine absolutely prohibited the United States from taking any steps to defeat the passing of title to land underneath navigable waters to the States. Id., at 230. Half a century later, however, the Court disavowed the dicta in Pollard’s Lessee, and held that the Federal Government had the power, under the Property Clause, to convey such land to third parties: “By the Constitution, as is now well settled, the United States, having rightfully acquired the Territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and state, over all the Territories, so long as they remain in territorial condition. . . . “We cannot doubt, therefore, that Congress has the power to make grants of lands below high water mark of navigable waters in any Territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory.” Shively v. Bowlby, 152 U. S., at 48. Thus, under the Constitution, the Federal Government could defeat a prospective State’s title to land under navigable waters by a prestatehood conveyance of the land to a private party for a public purpose appropriate to the Territory. The Court further noted, however, that Congress had never undertaken by general land laws to dispose of land under navigable waters. Ibid. From this, the Court inferred a congressional policy (although not a constitutional obligation) to grant away land under navigable waters only “in case of some international duty or public exigency.” Id., at 50. The principles articulated in Shively have been applied a number of times by this Court, and in each case we have consistently acknowledged congressional policy to dispose of sovereign lands only in the most unusual circumstances. In recognition of this policy, we do not lightly infer a congressional intent to defeat a State’s title to land under navigable waters: “[T]he United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate benefit of future States, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency. It follows from this that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” United States v. Holt State Bank, 270 U. S. 49, 55 (1926). We have stated that “[a] court deciding a question of title to the bed of a navigable water must. . . begin with a strong presumption against conveyance by the United States, and must not infer such a conveyance unless the intention was definitely declared or otherwise made very plain, or was rendered in clear and especial words, or unless the claim confirmed in terms embraces the land under the waters of the stream.” Montana v. United States, 450 U. S. 544, 552 (1981) (internal quotations omitted; citations omitted). Indeed, in only a single case—Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970) — have we concluded that Congress intended to grant sovereign lands to a private party. The holding in Choctaw Nation, moreover, rested on the unusual history behind the Indian treaties at issue in that case, and indispensable to the holding was a promise to the Indian Tribe that no part of the reservation would become part of a State. Montana v. United States, supra, at 555, n. 5. Choctaw Nation was thus literally a “singular exception,” in which the result depended “on very peculiar circumstances.” 450 U. S., at 555, n. 5. B Utah Lake is a navigable body of freshwater covering 150 square miles. It is drained by the Jordan River, which flows northward and empties into the Great Salt Lake. Several years before the entry of Utah into the Union, “[t]he opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts.” California v. United States, 438 U. S. 645, 659 (1978). In response, Congress passed the Sundry Appropriations Act of 1888, 25 Stat. 505 (1888 Act), which authorized the United States Geological Survey to select “sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows.” Id., at 526. The Act further provided that the United States would reserve the sites that might be so selected: “[A]ll the lands which may hereafter be designated or selected ... for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement or occupation until further provided by law.” Id., at 527. On April .6, 1889, Major John Wesley Powell, the Director of the United States Geological Survey, submitted a report to the Secretary of the Interior stating that the “site of Utah Lake in Utah County in the Territory of Utah is hereby selected as a reservoir site, together with all lands situate within two statute miles of the border of said lake at high water.” App. 19. The Commissioner of the General Land Office subsequently informed the Land Office at Salt Lake City of the selection of “the site of Utah Lake” as “a reservoir site” and instructed the Land Office “to refuse further entries or filing on the lands designated, in accordance with the [Sundry Appropriations] Act of October 2, 1888.” Letter of Apr. 11, 1889, App. 21. The selection of Utah Lake as a reservoir was confirmed in the official reports of the Geological Survey to Congress. Because the 1888 Act reserved all the land that “may” be designated, the 1888 Act had the practical effect of reserving all of the public lands in the West from public settlement. California v. United States, 438 U. S., at 659. Therefore, in 1890 — in response to “a perfect storm of indignation from the people of the West,” ibid, (quoting 29 Cong. Rec. 1955 (1897) (statement of Cong. McRae)) — Congress repealed the 1888 Act in the Sundry Appropriations Act of 1890, ch. 837, 26 Stat. 371 (1890 Act). In repealing the 1888 Act, however, Congress provided “that reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by [the 1888 Act].” Id., at 391. Six years later, on January 4, 1896, Utah entered the Union. The Utah Enabling Act of July 16, 1894, provided that Utah was “to be admitted into the Union on an equal footing with the original States.” 28 Stat. 107. In 1976, the Bureau of Land Management of the United States Department of the Interior issued oil and gas leases for lands underlying Utah Lake. Viewing this as a violation of its ownership and property rights to the bed of Utah Lake, the State of Utah brought suit in the District Court for the District of Utah seeking a declaratory judgment that it, rather than the United States, had title to the lakebed. Utah also sought an injunction against interference with its alleged ownership and management rights. In its complaint, Utah claimed that on January 4,1896, by virtue of the State’s admission into the Union on an equal footing with all other States, the State of Utah became the owner of the bed of Utah Lake. The United States, in turn, answered that title to the lakebed remained in federal ownership by operation of Major Powell’s selection of the lake as a reservoir site in 1889. The District Court granted summary judgment for the United States, holding that the United States held title to the bed of Utah Lake. 624 F. Supp. 622 (1983). The District Court found that the withdrawal of the bed of Utah Lake in 1889 pursuant to the 1888 Act defeated Utah’s claim to title under the equal footing doctrine. The Court of Appeals for the Tenth Circuit affirmed. 780 F. 2d 1615 (1985). We granted certiorari, 479 U. S. 881 (1986), and now reverse. II The State of Utah contends that only a conveyance to a third party, and not merely a federal reservation of land, can defeat a State’s title to land under navigable waters upon entry into the Union. Although this Court has always spoken in terms of a “conveyance” by the United States before statehood, we have never decided whether Congress may defeat a State’s claim to title by a federal reservation or withdrawal of land under navigable waters. In Shively, this Court concluded that the only constitutional limitation on the right to grant sovereign land is that such a grant must be for a “public purpos[e] appropriate to the objects for which the United States hold[s] the Territory.” 152 U. S., at 48. In the Court’s view, the power to make such a grant arose out of the Federal Government’s power over Territories under the Property Clause of the United States Constitution, which provides: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States_” U. S. Const., Art. IV, §3, cl. 2. The Property Clause grants Congress plenary power to regulate and dispose of land within the Territories, and assuredly Congress also has the power to acquire land in aid of other powers conferred on it by the Constitution. Under Utah’s view, however, while the United States could create a reservoir site by granting title to Utah Lake to a private entity, the United States could not accomplish the same purpose by a means that would keep Utah Lake under federal control. We need not decide that question today, however, because even if a reservation of the bed of Utah Lake could defeat Utah’s claim, it was not accomplished on these facts. Although arguably there is nothing in the Constitution to prevent the Federal Government from defeating a State’s title to land under navigable waters by its own reservation for a particular use, the strong presumption is against finding an intent to defeat the State’s title. In Shively and Holt State Bank this Court observed that Congress “early adopted and constantly has adhered” to a policy of holding land under navigable waters “for the ultimate benefit of future States.” United States v. Holt State Bank, 270 U. S., at 55; Shively v. Bowlby, 152 U. S., at 49-50. Congress, therefore, will defeat a future State’s entitlement to land under navigable waters only “in exceptional instances,” and in light of this policy, whether faced with a reservation or a conveyance, we simply cannot infer that Congress intended to defeat a future State’s title to land under navigable waters “unless the intention was definitely declared or otherwise made very plain.” United States v. Holt State Bank, supra, at 55. When Congress intends to convey land under navigable waters to a private party, of necessity it must also intend to defeat the future State’s claim to the land. When Congress reserves land for a particular purpose, however, it may not also intend to defeat a future State’s title to the land. The land remains in federal control, and therefore may still be held for the ultimate benefit of future States. Moreover, even if the land under navigable water passes to the State, the Federal Government may still control, develop, and use the waters for its own purposes. Arizona v. California, 373 U. S. 546, 597-598 (1963). Congress, for example, may intend to create a reservoir, but also intend to let the State obtain title to the land underneath this reservoir upon entry into statehood. Such an intent would not be unusual. In Montana v. United States, 450 U. S. 544 (1981), we found that Congress intended to permit the State to take title to the béd of a navigable river even though the river was in the midst of an Indian Reservation, and in United States v. Holt State Bank, supra, we held that Congress intended the State to hold title to the bed of a navigable lake wholly within the boundaries of an Indian Reservation. Given the longstanding policy of holding land under navigable waters for the ultimate benefit of the States, therefore, we would not infer an intent to defeat a State’s equal footing entitlement from the mere act of reservation itself. Assuming, arguendo, that a reservation of land could be effective to overcome the strong presumption against the defeat of state title, the United States would not merely be required to establish that Congress clearly intended to include land under navigable waters within the federal reservation; the United States would additionally have to establish that Congress affirmatively intended to defeat the future State’s title to such land. I — < 1 — 1 1 — ( We conclude that the 1888 Act fails to make sufficiently plain either a congressional intent to include the bed of Utah Lake within the reservation or an intent to defeat Utah’s claim to title under the equal footing doctrine. The 1888 Act provided that the reserved lands were “reserved from sale as the property of the United States, and shall not be subject . . . to entry, settlement or occupation until further provided by law.” 25 Stat. 527. The words of the 1888 Act did not necessarily refer to lands under navigable waters because lands under navigable lakes and rivers such as the bed of Utah Lake were already the property of the United States, and were already exempt from sale, entry, settlement, or occupation under the general land laws. As this Court recognized in Shively v. Bowlby, supra, at 48, “Congress has never undertaken by general laws to dispose of” land under navigable waters. See also Mann v. Tacoma Land Co., 153 U. S. 273, 284 (1894) (applying Shively v. Bowlby, supra, to hold that “the general legislation of Congress in respect to public lands does not extend to tide lands”); Illinois Central R. Co. v. Illinois, 146 U. S. 387, 437 (1892) (holding that “the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters . . . applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea”). Therefore, little purpose would have been served by the reservation of the bed of Utah Lake. Moreover, the concerns with monopolization and speculation that motivated Congress to enact the 1888 Act, see P. Gates, History of Public Land Law Development 641 (1968), had nothing to do with the beds of navigable rivers and lakes. The intent to reach only land that would otherwise be available for sale and settlement is made manifest by the Act’s proviso: “Provided, That the President may at any time in his discretion by proclamation open any portion or all of the lands reserved by this provision to settlement under the homestead laws.” 25 Stat. 527. This proviso would permit the President to open any land reserved under the 1888 Act to settlement under the homesteading laws. We find it inconceivable that Congress intended by this simple proviso to abandon its long-held and unyielding policy of never permitting the sale or settlement of land under navigable waters under the general land laws. Shively v. Bowlby, 152 U. S., at 48. The proviso can be interpreted consistently with that policy only if lands under navigable waters were not subject to reservation under the 1888 Act in the first instance. The United States, however, does not rely solely on the 1888 Act. It points to references to the bed of Utah Lake made by the Geological Survey in reserving Utah Lake, and contends that Congress ratified the Geological Survey’s reservation of the bed of Utah Lake in the 1890 Act. In the 1890 Act, Congress repealed the 1888 Act, but also specifically provided that “reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by [the 1888] Act, until otherwise provided by law.” 26 Stat. 391. Thus, the United States argues, Congress ratified the reservation of the lakebed of Utah Lake. At first examination, statements made by the Geological Survey in reserving Utah Lake might seem to support this argument. The Tenth Annual Report of the Geological Survey (1890), which was transmitted to Congress, stated that an individual had been sent to examine Utah Lake “with reference to its capacity for a reservoir site,” in order that he might “furnish the specifications for its withdrawal as such under the law, so far as the lands covered or overflowed by it or the lands bordering upon it were still public lands.” App. 25. Furthermore, in the Eleventh Annual Report (1891), the Geological Survey reported that “the segregation” of Utah Lake “was made to include not only the bed but the lowlands up to mean high water.” App. 29. The Geological Survey’s references to the “segregation” of the bed of Utah Lake, however, must be placed in the proper context. A “segregation” of land simply means that the land is no longer subject to disposal under the public land laws. See E. Baynard, Public Land Law and Procedure §5.32, p. 174 (1986). The bed of Utah Lake had already been “segregated” by the United States Geological Survey even before the adoption of the 1888 Act. The United States had surveyed Utah Lake between 1856 and 1878, and had established the “meander line” — the mean high-water elevation— segregating the land covered by navigable waters from land available for public sale and settlement. 4 Record, Doc. F; U. S. Bureau of Land Management, Manual of Instructions for Survey of Public Lands of the United States § 3-115, p. 93 (1973) (“All navigable bodies of water and other important rivers and lakes are segregated from the public lands at mean high-water elevation”). Given that the bed of Utah Lake was already “segregated” from public sale, the United States Geological Survey Reports are best understood as reporting the further segregation of the lands adjacent to the lake which, until the reservation of Utah Lake in 1889, had not been segregated and thus had been available for public settlement. In the Eleventh Annual Report, for example, the Geological Survey’s announcement that “the segregation” of Utah Lake “includ[ed] not only the bed but the lowlands up to mean high water” in our view simply announced an increase in the segregated portion of Utah Lake. App. 29. Because the bed of Utah Lake had been segregated as early as 1878, the Geological Survey’s statement that the lakebed was segregated need not be taken as a statement that the bed was included within the reservation. Similarly, the Tenth Annual Report’s statement that a Geological Survey employee would furnish specifications for a withdrawal “so far as the lands covered or overflowed by [Utah Lake] or the lands bordering upon it were still public lands,” id., at 25 (emphasis supplied), is consistent with an intention that the Geological Survey would withdraw those lands still subject to public settlement, i. e., the lands that were “still public lands.” See Baynard, supra, §1.1, p. 2 (“Most enduringly, the public lands have been defined as those lands subject to sale or other disposal under the general land laws”) (emphasis in original). Because the bed of Utah Lake was not at that time “public land” subject to settlement, we think it doubtful that the Tenth Annual Report should be understood as informing Congress that the Geological Survey had reserved the bed of Utah Lake. The record reflects that the Geological Survey’s concern in 1889 was not with the bed of Utah Lake; rather its concern was that the land adjacent to the lake was then available for public sale and settlement under the general land laws. In Major Powell’s letter to the Department of the Interior announcing the selection of Utah Lake as a reservoir site he did not discuss the bed of Utah Lake. Instead, he observed that “further entries of the lands adjoining Utah Lake will have a tendency to defeat the purposes of [the 1888 Act] and obstruct the use of the lake as a natural reservoir,” App. 20, and that “speedy action” was necessary to avoid settlement. Ibid. Thus, Major Powell recommended that “the Register of the Land Office at Salt Lake City be instructed to refuse entries of public land within” two miles of the lake. Ibid. The local land office was so instructed by the Department of the Interior. Id., at 21. We further find no clear demonstration that Congress intended to ratify any reservation of the bed of Utah Lake in the 1890 Act. At best, the United States points to only scattered references to the bed of Utah Lake in the material submitted to Congress, and presents no unambiguous evidence that Members of Congress actually understood these references as pointing to a reservation of the bed of Utah Lake. As with the 1888 Act, the language of the 1890 Act is consistent with the view that only land available for entry and sale was reserved: “[Rjeservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by said act, until otherwise provided by law _” 26 Stat. 391. In sum, the 1890 Act can be understood as ratifying a reservation of the bed of Utah Lake only by ignoring the language of the 1890 Act and by taking the Geological Survey’s references to the bed of Utah Lake out of context. Under our precedents, however, we cannot so lightly infer the reservation of land under navigable waters. We conclude, therefore, that the 1890 Act no more “‘definitely declared or otherwise made very plain’” Congress’ intention to reserve Utah Lake than had the 1888 Act. Montana v. United States, 450 U. S., at 552 (quoting United States v. Holt State Bank, 270 U. S., at 55). > H — I Even if Congress did intend to reserve the bed of Utah Lake in either the 1888 Act or the 1890 Act, however, Congress did not clearly express an intention to defeat Utah’s claim to the lakebed under the equal footing doctrine upon entry into statehood. The United States points to no evidence of a congressional intent to defeat Utah’s entitlement to the bed of Utah Lake, and the structure and the history of the 1888 Act strongly suggest that Congress had no such intention. On its face, the 1888 Act does not purport to defeat the entitlement of future States to any land reserved. Instead, the Act merely provides that any reserved land is “reserved from sale” and “shall not be subject... to entry, settlement or occupation”; it makes no mention of the States’ entitlement to the beds of navigable rivers and lakes upon entry into statehood. The transfer of title of the bed of Utah Lake to Utah, moreover, would not necessarily prevent the Federal Government from subsequently developing a reservoir or water reclamation project at the lake in any event. See, e. g., Arizona v. California, 283 U. S. 423, 451-452, 457 (1931) (holding that the United States has power to construct a dam and reservoir on a navigable river and reserving question of such power for purpose of irrigating public lands). Finally, the broad sweep of the 1888 Act cannot be reconciled with an intent to defeat the States’ title to the land under navigable waters. As noted above, the 1888 Act “had the practical effect of reserving all of the public lands in the West from settlement.” California v. United States, 438 U. S., at 659. In light of the congressional policy of defeating the future States’ title to the lands under navigable waters only “in exceptional instances” in case of “international duty or public exigency,” United States v. Holt State Bank, supra, at 55, we find it inconceivable that Congress intended to defeat the future States’ title to all such land in the western United States. Such an action would be wholly at odds with Congress’ policy of holding this land for the ultimate benefit of the future States. In sum, Congress did not definitely declare or otherwise make very plain either its intention to reserve the bed of Utah Lake or to defeat Utah’s title to the bed under the equal footing doctrine. Accordingly, we hold that the bed of Utah Lake passed to Utah upon that State’s entry into statehood on January 4,1896. The judgment of the Court of Appeals is Reversed. The dissent misconstrues our argument with regard to the segregation of Utah Lake between 1856 and 1878. Post, at 214, n. 5. Our point is not that the meander line was a “boundary” between the lands under the navigable waters and the adjacent lands granted by the Federal Government to private citizens, nor that this line settled the property rights of those who occupied exposed land within the meander line when Utah Lake receded. The resolution of these issues is complex, depending in large measure on the facts of the specific survey. See 4 Record, Doc. J, p. 27 (Department of Interior Memorandum discussing the effect of the exposure of land contained within the meander line to Utah Lake on land patents granted before 1888); Poynter v. Chipman, 8 Utah 442, 32 P. 690 (1893) (case involving title to land between meander line and shoreline of Utah Lake); Knudsen v. Omanson, 10 Utah 124, 37 P. 250 (1894) (same); Hinckley v. Peay, 22 Utah 21, 60 P. 1012 (1900) (same). We express no opinion on these matters. Instead, our point is a simpler one — that the meander line “segregated” the bed of Utah Lake from public sale even before the 1889 reservation, and, accordingly, that the references to the “segregation” of the lakebed by the United States Geological Survey cannot be taken as unambiguous statements of an intent to include the lakebed within the 1889 reservation.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 25 ]	sc_adminaction
REEVES, INC. v. STAKE et al. No. 79-677. Argued April 16, 1980 Decided June 19, 1980 Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Marshall, and Rehnquist, JJ., joined. Powell, J., filed a dissenting opinion, in which BrennaN, White, and Stevens, JJ., joined, post, p. 447. Dennis M. Kirven argued the cause and filed a brief for petitioner. William J. Janklow argued the cause for respondents. On the brief were Michael B. DeMersseman and Curtis S. Jensen. Mr. Justice Blackmun delivered the opinion of the Court. The issue in this case is whether, consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, the State of South Dakota, in a time of shortage, may confine the sale of the cement it produces solely to its residents. I In 1919, South Dakota undertook plans to build a cement plant. The project, a product of the State’s then prevailing Progressive political movement, was initiated in response to recent regional cement shortages that “interfered with and delayed both public and private enterprises,” and that were “threatening the people of this state.” Eakin v. South Dakota State Cement Comm’n, 44 S. D. 268, 272, 183 N. W. 651, 652 (1921). In 1920, the South Dakota Cement Commission anticipated “[t]hat there would be a ready market for the. entire output of the plant within the state.” Report of State Cement Commission 9 (1920). The plant, however, located at Rapid City, soon produced more cement than South Da-kotans could use. Over the years, buyers in no less than nine nearby States purchased cement from the State’s plant. App. 26. Between 1970 and 1977, some 40% of the plant’s output went outside the State. The plant’s list of out-of-state cement buyers included petitioner Reeves, Inc. Reeves is a ready-mix concrete distributor organized under Wyoming law and with facilities in Buffalo, Gillette, and Sheridan, Wyo. Id,., at 15. From the beginning of its operations in 1958, and until 1978, Reeves purchased about 95% of its cement from the South Dakota plant. Id., at 15 and 22. In 1977, its purchases were $1,172,000. Id., at 17. In turn, Reeves has supplied three northwestern Wyoming counties with more than half their ready-mix concrete needs. Id., at 15. For 20 years the relationship between Reeves and the South Dakota cement plant was amicable, uninterrupted, and mutually profitable. As the 1978 construction season approached, difficulties at the plant slowed production. Meanwhile, a booming construction industry spurred demand for cement both regionally and nationally. Id., at 13. The plant found itself unable to meet all orders. Faced with the same type of “serious cement shortage” that inspired the plant’s construction, the Commission “reaffirmed its policy of supplying all South Dakota customers first and to honor all contract commitments, with the remaining volume allocated on a first come, first served basis.” Ibid Reeves, which had no pre-existing long-term supply contract, was hit hard and quickly by this development. On June 30, 1978, the plant informed Reeves that it could not continue to fill Reeves’ orders, and on July 5, it turned away a Reeves truck. Id., at 17-18. Unable to find another supplier, id., at 21, Reeves was forced to cut production by 76% in mid-July.. Id., at 20. On July 19, Reeves brought this suit against the Commission, challenging the plant’s policy of preferring South Dakota buyers, and seeking injunctive relief. Id., at 3-10. After conducting a hearing and receiving briefs and affidavits, the District Court found no substantial issue of material fact and permanently enjoined the Commission’s practice. The court reasoned that South Dakota’s “hoarding” was inimical to the national free market envisioned by the Commerce Clause. Id., at 27-30. The United States Court of Appeals for the Eighth Circuit reversed. Reeves, Inc. v. Kelley, 586 F. 2d 1230, 1232 (1978). It concluded that the State had “simply acted in a proprietary capacity,” as permitted by Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). Petitioner sought certiorari. This Court granted the petition, vacated the judgment, and remanded the case for further consideration in light of Hughes v. Oklahoma, 441 U. S. 322 (1979). Reeves, Inc. v. Kelley, 441 U. S. 939 (1979). On remand, the Court of Appeals distinguished that case. Again relying on Alexandria Scrap, the court abided by its previous holding. Reeves, Inc. v. Kelley, 603 F. 2d 736 (1979). We granted Reeves’ petition for certiorari to consider once again the impact of the Commerce Clause on state proprietary activity. 444 U. S. 1031 (1980). II A Alexandria Scrap concerned a Maryland program designed to remove abandoned automobiles from the State’s roadways and junkyards. To encourage recycling, a “bounty” was offered for every Maryland-titled junk car converted into scrap. Processors located both in and outside Maryland were eligible to collect these subsidies. The legislation, as initially enacted in 1969, required a processor seeking a bounty to present documentation evidencing ownership of the wrecked car. This requirement however, did not apply to “hulks,” inoperable automobiles over eight years old. In 1974, the statute was amended to extend documentation requirements to hulks, which comprised a large majority of the junk cars being processed. Departing from prior practice, the new law imposed more exacting documentation requirements on out-of-state than in-state processors. By making it less remunerative for suppliers to transfer vehicles outside Maryland, the reform triggered a “precipitate decline in the number of bounty-eligible hulks supplied to appellee’s [Virginia] plant from Maryland sources.” 426 U. S., at 801. Indeed, “[t]he practical effect was substantially the same as if Maryland had withdrawn altogether the availability of bounties on hulks delivered by unlicensed suppliers to licensed non-Maryland processors.” Id., at 803, n. 13; see id., at 819 (dissénting opinion). Invoking the Commerce Clause, a three-judge District Court struck down the legislation. 391 F. Supp. 46 (Md. 1975). It observed that the amendment imposed “substantial burdens upon the free flow of interstate commerce,” id., at 62, and reasoned that the discriminatory program was not the least disruptive means of achieving the State’s articulated objective. Id., at 63. See generally Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). This Court reversed. It recognized the persuasiveness of the lower court’s analysis if the inherent restrictions of the Commerce Clause were deemed applicable. In the Court’s view, however, Alexandria Scrap did not involve “the kind of action with which the Commerce Clause is concerned.” 426 U. S., at 805. Unlike prior cases voiding state laws inhibiting interstate trade, “Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price,” id., at 806, “as a purchaser, in effect, of a potential article of interstate commerce,” and has restricted “its trade to its own citizens or businesses within the State.” Id., at 808. Having characterized Maryland as a market participant, rather than as a market regulator, the Court found no reason to “believe the Commerce Clause was intended to require independent justification for [the State’s] action.” Id., at 809. The Court couched its holding in unmistakably broad terms. “Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” Id., at 810 (footnote omitted). B The basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law. As that case explains, the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. Id., at 807-808, citing. H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 539 (1949) (referring to “home embargoes,” “customs duties,” and “regulations” excluding imports). There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market. See L. Tribe, American Constitutional Law 336 (1978) (“the commerce clause was directed, as an historical matter, only at regulatory and taxing actions taken by states in their sovereign capacity”). The precedents comport with this distinction. Restraint in this area is also counseled by considerations of state sovereignty, the role of each State “ 'as guardian and trustee for its people,’ ” Heim v. McCall, 239 U. S. 175, 191 (1915), quoting Atkin v. Kansas, 191 U. S. 207, 222-223 (1903), and "the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U. S. 300, 307 (1919). Moreover, state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause. See State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 260, 76 So. 258, 260 (1917); Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591, 597, 75 N. W. 904, 906 (1898). Finally, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, Alexandria Scrap wisely recognizes that, as a rule, the adjustment of interests in this context is a task better suited for Congress than this Court. III South Dakota, as a seller of cement, unquestionably fits the “market participant” label more comfortably than a State acting to subsidize local scrap processors. Thus, the general rule of Alexandria Scrap plainly applies here. Petitioner argues, however, that the exemption for marketplace participation necessarily admits of exceptions. While conceding that possibility, we perceive in this case no sufficient reason to depart from the general rule. A In finding a Commerce Clause violation, the District Court emphasized “that the Commission... made an election to become part of the interstate commerce system.” App. 28. The gist of this reasoning, repeated by petitioner here, is that one good turn deserves another. Having long exploited the interstate market, South Dakota should not be permitted to withdraw from it when a shortage arises. This argument is not persuasive. It is somewhat self-serving to say that South Dakota has “exploited” the interstate market. An equally fair characterization is that neighboring States long have benefited from South Dakota's foresight and industry. Viewed in this light, it is not surprising that Alexandria Scrap rejected an argument that the 1974 Maryland legislation challenged there was invalid because cars abandoned in Maryland had been processed in neighboring States for five years. As in Alexandria Scrap, we must conclude that “this chronology does not distinguish the case, for Commerce Clause purposes, from one in which a State offered [cement] only to domestic [buyers] from the start.” 426 IT. S., at 809. Our rejection of petitioner’s market-exploitation theory fundamentally refocuses analysis. It means that to reverse we would have to void a South Dakota “residents only” policy even if it had been enforced from the plant’s very first days. Such a holding, however, would interfere significantly with a State’s ability to structure relations exclusively with its own citizens. It would also threaten the future fashioning of effective and creative programs for solving local problems and distributing government largesse. See n. 1, supra. A healthy regard for federalism and good government renders us reluctant to risk these results. “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandéis, J., dissenting). B Undaunted by these considerations, petitioner advances four more arguments for reversal: First, petitioner protests that South Dakota’s preference for its residents responds solely to the “non-governmental ob-jectiv[e]” of protectionism. Brief for Petitioner 25. Therefore, petitioner argues, the policy is per se invalid. See Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). We find the label “protectionism” of little help in this context. The State’s refusal to sell to buyers other than South Dakotans is “protectionist” only in the sense that it limits benefits generated by a state program to those who fund the state treasury and whom the State was created to serve. Petitioner’s argument apparently also would characterize as “protectionist” rules restricting to state residents the enjoyment of state educational institutions, energy generated by a state-run plant, police and fire protection, and agricultural improvement and business development programs. Such policies, while perhaps “protectionist” in a loose sense, reflect the essential and patently unobjectionable purpose of state government — to serve the citizens of the State. Second, petitioner echoes the District Court’s warning: “If a state in this union, were allowed to hoard its commodities or resources for the use of their own residents only, a drastic situation might evolve. For example, Pennsylvania or Wyoming might keep their coal, the northwest its timber, and the mining states their minerals. The result being that embargo may be retaliated by embargo and commerce would be halted at state lines.” App. 29. See, e. g., Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 385-386 (1978). This argument, although rooted in the core purpose of the Commerce Clause, does not fit the present facts. Cement is not a natural resource, like coal, timber, wild game, or minerals. Cf. Hughes v. Oklahoma, 441 U. S. 322 (1979) (minnows); Philadelphia v. New Jersey, supra (landfill sites); Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (natural gas); West v. Kansas Natural Gas Co., 221 U. S. 229 (1911) (same); Note, 32 Rutgers L. Rev. 741 (1979). It is the end product of a complex process whereby a costly physical plant and human labor act on raw materials. South Dakota has not sought to limit access to the State's limestone or other materials used to make cement. Nor has it restricted the ability of private firms or sister States to set up plants within its borders. Tr. of Oral Arg. 4. Moreover, petitioner has not suggested that South Dakota possesses unique access to the materials needed to produce cement. Whatever limits might exist on a State’s ability to invoke the Alexandria Scrap exemption to hoard resources which by happenstance are found there, those limits do not apply here. Third, it is suggested that the South Dakota program is infirm because it places South Dakota suppliers of ready-mix concrete at a competitive advantage in the out-of-state market; Wyoming suppliers, such as petitioner, have little chance against South Dakota suppliers who can purchase cement from the State’s plant and freely sell beyond South Dakota’s borders. The force of this argument is seriously diminished, if not eliminated, by several considerations. The argument necessarily implies that the South Dakota scheme would be unobjectionable if sales in other States were totally barred. It therefore proves too much, for it would tolerate even a greater measure of protectionism and stifling of interstate commerce than the challenged system allows. See K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm’n, 75 N. J. 272, 298, 381 A. 2d 774, 787 (1977) (“It would be odd indeed to find that when a state becomes less parochial... its purpose becomes suspect under the Commerce Clause”). Cf. Pike v. Bruce Church, Inc., 397 U. S., at 142 (“And the extent of the burden that will be tolerated will of course depend... on whether [the state interest] could be promoted as well with a lesser impact on interstate activities”). Nor is it to be forgotten that Alexandria Scrap approved a state program that “not only... effectively protect [ed] scrap processors with existing plants in Maryland from the pressures of competitors with nearby out-of-state plants, but [that] implicitly offer [ed] to extend similar protection to any competitor... willing to erect a scrap processing facility within Maryland’s boundaries.” 391 F. Supp., at 63. Finally, the competitive plight of out-of-state ready-mix suppliers cannot be laid solely at the feet of South Dakota. It is attributable as well to their own States’ not providing or attracting alternative sources of supply and to the suppliers’ own failure to guard against shortages by executing long-term supply contracts with the South Dakota plant. In its last argument, petitioner urges that, had South Dakota not acted, free market forces would have generated an appropriate level of supply at free market prices for all buyers in the region. Having replaced free market forces, South Dakota should be forced to replicate how the free market would have operated under prevailing conditions. This argument appears to us to be simplistic and speculative. The very reason South Dakota built its plant was because the free market had failed adequately to supply the region with cement. See n. 1, supra. There is no indication, and no way to know, that private industry would have moved into petitioner’s market area, and would have ensured a supply of cement to petitioner either prior to or during the 1978 construction season. Indeed, it is quite possible that petitioner would never have existed — far less operated successfully for 20 years — had it not been for South Dakota cement. C We conclude, then, that the arguments for invalidating South Dakota’s resident-preference program are weak at best. Whatever residual force inheres in them is more than offset by countervailing considerations of policy and fairness. Reversal would discourage similar state projects, even though this project demonstrably has served the needs of state residents and has helped the entire region for more than a half century. Reversal also would rob South Dakota of the intended benefit of its foresight, risk, and industry. Under these circumstances, there is no reason to depart from the general rule of Alexandria Scrap. The judgment of the United States Court of Appeals is affirmed. It is so ordered. It was said that the plant was built because the only cement plant in the State “had been operating successfully for a number of years until it had been bought by the so-called trust and closed down.” Report of South Dakota State Cement Commission 6 (1920). In its report advocating creation of a cement plant, the Commission noted both the substantial profits being made by private producers in the prevailing market, and the fact that producers outside the State were “now supplying all the cement used in” South Dakota. Under the circumstances, the Commission reasoned, it would not be to the “capitalists [’]... advantage to build a new plant within the state.” Id., at 8. This skepticism regarding private industry’s ability to serve public needs was a hallmark of Progressivism. See, e. g., R. Hofstadter, The Age of Reform 227 (1955) (“In the Progressive era the entire structure of business... became the object of a widespread hostility”). South Dakota, earlier a bastion of Populism, id., at 50, became a leading Progressivist State. See R. Nye, Midwestern Progressive Politics 217-218 (1959); G. Mowry, Theodore Roosevelt and the Progressive Movement 155, and n. 125 (1946). Roosevelt carried South Dakota in the election of 1912, id., at 281, n. 69, and Robert La Follette-on a platform calling for public ownership of railroads and waterpower, see K. MacKay, The Progressive Movement of 1924, pp. 270-271 (app. 4) (1906)-ran strongly (36.9%) in the State in 1924. Congressional Quarterly’s Guide to U. S. Elections 287 (1975). The backdrop against which the South Dakota cement project was initiated is described in H. Schell, History of South Dakota 268-269 (3d ed. 1975): “Although a majority of the voters [in 1918] had seemingly subscribed to a state-ownership philosophy, it was a question how far the Republican administration at Pierre would go in fulfilling campaign promises. As [Governor] Norbeclc entered upon his second term, he again urged a state hail insurance law and advocated steps toward a state-owned coal mine, cement plant, and state-owned stockyards. He also recommended an appropriation for surveying dam sites for hydroelectric development. The lawmakers readily enacted these recommendations into law, except for the stockyards proposal.... “... In retrospect, [Norbeck’s] program must be viewed as a part of the Progressives’ campaign against monopolistic prices. There was, moreover, the fervent desire to make the services of the state government available to agriculture.... These were basic tenets of the Progressive philosophy of government-.” “[C]ement is a finely ground manufactured mineral product, usually gray in color. It is mixed with water and sand, gravel, crushed stone, or other aggregates to form concrete, the rock-like substance that is the most widely used construction material in the world.” Portland Cement Association, The U. S. Cement Industry, An Economic Report 5 (2d ed. 1978). “Ready-mixed concrete is the term applied to ordinary concrete that is mixed at a central depot instead of on the construction site, and is distributed in special trucks.” 4 Encyclopedia Britannica 1077 (1974). It is not clear when the State initiated its policy preferring South Dakota customers. The record, however, shows that the policy was in place at least by 1974. App. 24. We now agree with the Court of Appeals that Hughes v. Oklahoma does not bear on analysis here. That case involved a State’s attempt “ ‘to prevent privately owned articles of trade from being shipped and sold in interstate commerce.’ ” Philadelphia v. New Jersey, 437 U. S. 617, 627 (1978), quoting Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10 (1928). Thus, it involved precisely the type of activity distinguished by the Court in Alexandria Scrap. See 426 U. S., at 806-806. During the pendency of this litigation, economic conditions have permitted South Dakota to discontinue enforcement of its resident-preference policy. We agree with the parties, however, that the case has not become moot. During at least three construction seasons within as many decades the cement plant has been unable, or nearly unable, to satisfy demand. See, e. g., Twelfth Biennial Report of the South Dakota State Cement Commission (1948); App. 23 (affidavit of C. A. Reeves). Under these circumstances, “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U. S. 147, 149 (1975). Maryland sought to justify its reform as an effort to reduce bounties paid to out-of-state processors on Maryland-titled cars abandoned outside Maryland. The District Court concluded that Maryland could achieve this goal more satisfactorily by simply restricting the payment of bounties to only those cars abandoned in Maryland. The Court invoked this rationale after explicitly reiterating the District Court’s finding that the Maryland program imposed “ ‘substantial burdens upon the free flow of interstate commerce.’ ” 426 U. S., at 804. Moreover, the Court was willing to accept the Virginia processor’s characterization of the Maryland program as “reducing in some manner the flow of goods in interstate commerce.” Id., at 805. Given this concession, we are unable to accept the dissent’s description of Alexandria Scrap as a case in which “we found no burden on commerce,” post, at 451, “concluded that the subsidies... erected no barriers to trade,” post, at 452, and determined that the Maryland program did not “cut off,” ibid., or “impede the flow of interstate commerce,” post, at 450. Indeed, even the dissent in the present case recognizes that the Maryland subsidy program “divert[ed] Maryland ‘hulks’ to in-state processors.” Post, at 451. To be sure, Alexandria Scrap rejected the argument that “the bounty program constituted an impermissible burden on interstate commerce.” Ibid, (emphasis added). It did so, however, solely because Maryland had “entered into the market itself.” 426 U. S., at 806. Thus, the two-step analysis distilled by the dissent from Alexandria Scrap, see post, at 451-453, collapses into a single inquiry: whether the challenged “program constituted direct state participation in the market.” Post, at 451. The dissent agrees that that question is to be answered in the affirmative here. Ibid. The dissent’s central criticisms of the result reached here seem to be that the South Dakota policy does not emanate from “the power of governments to supply their own needs,” and that it threatens “ ‘the natural functioning of the interstate market.’ ” Post, at 450. The same observations, however, apply with equal force to the subsidy program challenged in Alexandria Scrap. Alexandria Scrap does not stand alone. In American Yearbook Co. v. Askew, 339 F. Supp. 719 (MD Fla. 1972), a three-judge District Court upheld a Florida statute requiring the State to obtain needed printing services from in-state shops. It reasoned that “state proprietary functions” are exempt from Commerce Clause scrutiny. Id., at 725. This Court affirmed summarily. 409 U. S. 904 (1972). Numerous courts have rebuffed Commerce Clause challenges directed at similar preferences that exist in “a substantial majority of the states.” Note, 58 Iowa L. Rev. 576 (1973). City of Phoenix v. Superior Court, 109 Ariz. 533, 535, 514 P. 2d 454, 456 (1973) (citing American Yearbook to reaffirm Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 255 P. 2d 604 (1953)); Denver v. Bossie, 83 Colo. 329, 266 P. 214 (1928); In re Gemmill, 20 Idaho 732, 119 P. 298 (1911); People ex rel. Holland v. Bleigh Constr. Co., 61 Ill. 2d 258, 274-275, 335 N. E. 2d 469, 479 (1975) (citing American Yearbook) ; State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258 (1917); Allen v. Labsap, 188 Mo. 692, 87 S. W. 926 (1905); Hersey v. Neilson, 47 Mont. 132, 131 P. 30 (1913); Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591, 75 N. W. 904 (1898). See also Dixon-Paul Printing Co. v. Board of Public Contracts, 117 Miss. 83, 77 So. 908 (1918); Luboil Heat & Power Corp. v. Pleydell, 178 Misc. 562, 564, 34 N. Y. S. 2d 587, 591 (Sup. 1942). The only clear departure from this pattern, People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776 (1901), drew a strong dissent, and has been uniformly criticized in later decisions. See, e. g., State ex rel. Collins v. Senatobia Blank Book & Stationery Co., supra; Allen v. Labsap, supra. One other case merits comment. In Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal. App. 2d 221, 80 Cal. Rptr. 800 (1969), the court struck down a California statute requiring the State to contract only with persons who promised to use or supply materials produced in the United States. In Opinion No. 69-253, 53 Op. Cal. Atty. Gen. 72 (1970), the State’s Attorney General reasoned that Bethlehem, Steel similarly prohibited, under the “foreign commerce” Clause, statutes giving a preference to California-produced goods. We have no occasion to explore the limits imposed on state proprietary actions by the “foreign commerce” Clause or the constitutionality of “Buy American” legislation. Compare Bethlehem Steel Corp., supra, with K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm’n, 75 N. J. 272, 381 A. 2d 774 (1977). We note, however, that Commerce Clause scrutiny may well be more rigorous when a restraint on foreign commerce is alleged. See Japan Line, Ltd. v.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
LEROY, ATTORNEY GENERAL OF IDAHO, et al. v. GREAT WESTERN UNITED CORP. No. 78-759. Argued April 17, 1979 Decided June 26, 1979 Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blacicmun, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 187. Peter E. Heiser, Jr., Special Deputy Attorney General of Idaho, argued the cause and filed briefs for appellants. Ivan Irwin, Jr., argued the cause for appellee. With him on the brief were A. B. Conant, Jr., and James William Moore. Amy Juviler, Assistant Attorney General, argued the cause for the State of New York et al. as amici curiae urging reversal. With her on the brief were Robert Abrams, Attorney General, and Shirley Adelson Siegel, Solicitor General. Deputy Solicitor General Easterbrook argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Elinor Hadley Stillman, and Ralph C. Ferrara. Briefs of amid curiae urging reversal were filed by George Deukmejian, Attorney General of California, Arthur C. DeGoede, Assistant Attorney General, and Philip C. Griffin and Ronald V. Thunen, Jr., Deputy Attorneys General; Michael T. Greely, Attorney General of Montana; Rufus L. Edmisten, Attorney General of North Carolina, and Rudolph A. Ashton III, Assistant Attorney General; and N. Jerome Diamond, Attorney General of Vermont, for the States of California et al.; by Theodore L. Sendak, At-tomey General, William G. Mundy, Assistant Attorney General, and Donald P. Bogará for the State of Indiana; by Francis X. Bellotti, Attorney General, and William M. O’Brien, Special Assistant Attorney General, for the Commonwealth of Massachusetts; by William J. Brown, Attorney General, and Donald A. Antrim, Special Assistant Attorney General, for the State of Ohio; by Robert B. Hansen, Attorney General, Michael L. Deamer, Chief Deputy Attorney General, and Donald B. Holbrook for the State of Utah; and by Jon S. Hanson and Richard A. Hemmings for the National Association of Insurance Commissioners. Mr. Justice Stevens delivered the opinion of the Court. An Idaho statute imposes restrictions on certain purchasers of stock in corporations having substantial assets in Idaho. The questions presented by this appeal are whether the state agents responsible for enforcing the statute may be required to defend its constitutionality in a Federal District Court in Texas and, if so, whether the statute conflicts with the Williams Act amendments to the Securities Exchange Act of 1934, or with the Commerce Clause of the United States Constitution. Sunshine Mining and Metal Co. (Sunshine) is a “target company” within the meaning of the Idaho Corporate Takeover Act — a statute designed to regulate takeovers of corporations that have certain connections to the State. Sunshine’s principal business is a silver mining operation in the Coeur d’Alene Mining District in Idaho. Its executive offices and most of its assets are located in the State. Sunshine is also engaged in business in New York and, through a subsidiary, in Maryland. Its stock is traded over the New York Stock Exchange, and its shareholders are dispersed throughout the country. App. 36. It is a Washington corporation. Great Western United Corp. v. Kidwell, 439 F. Supp. 420, 423-424. Great Western United Corp. (Great Western) is an “offeror” within the meaning of the Idaho statute. Great Western is a publicly owned Delaware corporation with executive headquarters in Dallas, Tex., and corporate offices in Denver, Colo. App. 131. In early 1977, Great Western decided to make a public offer to purchase 2 million shares of Sunshine stock for a premium price. Because consummation of the proposed tender offer would cause Great Western to own more than 5% of Sunshine’s outstanding shares, Great Western was required to comply with certain provisions of the Williams Act and arguably also to comply with the Idaho Corporate Takeover Act as well as with similar provisions of New York and Maryland. On March 21, 1977, Great Western publicly announced its intent to make a tender offer for 2 million shares of Sunshine, and its representatives took simultaneous steps to implement the proposed tender offer. They filed a Schedule 13D with the Securities and Exchange Commission in Washington, D. C., disclosing the information required by the Williams Act. They consulted with state officials in Idaho, New York, and Maryland about compliance with the corporate takeover laws of those States. And they filed documents with the Idaho Director of Finance in an attempt to satisfy Idaho’s statute. On March 25, 1977, Melvin Baptie, who was then the Deputy Administrator of Securities of the Idaho Department of Finance, sent a telecopy letter of objections to Great Western’s filing to the company’s offices in Dallas. The letter stated that certain pages of Great Western’s SEC Form 13D were missing, asked for several additional items of information, and indicated that no hearing would be scheduled, nor other action taken, until all of the requested information had been received. App. to Juris. Statement A-156 to A-164. On the same day, Tom McEldowney, the Director of Finance of Idaho, entered an order delaying the effective date of the tender offer.- Id., at A-165 to A-166. Great Western made no response to Baptie’s letter or to McEldowney’s order. On March 28, 1977, Great Western filed this action in the United States District Court for the Northern District of Texas, naming as defendants the state officials responsible for enforcing the Idaho, New York, and Maryland takeover laws. The complaint prayed for a declaration that the state laws were invalid insofar as they purported to apply to interstate cash tender offers to purchase securities traded on the national exchange. App. 1-36. The claims against the Maryland and New York defendants were dismissed because the former did not attempt to enforce their statute against Great Western and the latter expressly stated that they would not assert jurisdiction over the proposed tender offer. 439 F. Supp., at 428-429. The two Idaho defendants — McEldowney, the Director of Finance, and Wayne Kidwell, then Attorney General of the State — appeared specially to contest jurisdiction and venue, and later filed an answer contesting the merits of the claim. The District Court found four separate statutory bases for federal jurisdiction. It held that personal jurisdiction over the Idaho defendants had been obtained by service pursuant to the Texas long-arm statute. It concluded, however, that venue was improper under the general federal venue statute, 28 U. S. C. § 1391 (b), because the defendants obviously did not reside in Texas and the claim arose in Idaho rather than in Texas. Nonetheless, it decided that venue could be sustained under the special venue provision in § 27 of the Securities Exchange Act of 1934 (1934 Act). 48 Stat. 902, as amended, 15 U. S. C. § 78aa. See nn. 9 and 10, infra, and accompanying text. On the merits, the District Court held that the Idaho Corporate Takeover Act is pre-empted by the Williams Act and places an impermissible burden on interstate commerce. It granted injunctive relief that enabled Great Western to acquire the desired Sunshine shares in the fall of 1977. 439 F. Supp., at 434-440. That acquisition did not moot the case, however, because the question whether Great Western has violated Idaho’s statute will remain open unless and until the District Court’s judgment is finally affirmed. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. The court sustained federal subject-matter jurisdiction on the same four grounds relied upon by the District Court. See n. 6, su-pra. It then advanced alternative theories in support of both its determination that the District Court had personal jurisdiction over the defendants and its conclusion that venue lay in the Northern District of Texas. First, it noted that the Texas long-arm statute authorized the assertion of personal jurisdiction over nonresidents to the fullest extent allowable under the Due Process Clause of the Fourteenth Amendment. It then held that an Idaho official who seeks to enforce an Idaho statute to prevent a Texas-based corporation from proceeding with a national tender offer has sufficient contacts with Texas to support jurisdiction. Second, it held that jurisdiction was available under § 27 of the 1934 Act, which gives the federal district courts exclusive jurisdiction over suits brought “to enforce any . . . duty created” by the Act. It based this holding on the theory that Idaho’s enforcement attempts, by conflicting with the Williams Act, constituted a violation of a “duty” imposed by § 28 (a) of the 1934 Act. It relied on the same reasoning to support its conclusion that venue was authorized by § 27 of the 1934 Act. Finally, disagreeing with the District Court, the Court of Appeals concluded that venue in the Northern District of Texas was also proper under the general federal venue provision, 28 U. S. C. § 1391 (b), because the allegedly invalid restraint against Great Western occurred there and it was accordingly “the judicial district ... in which the claim arose.” Great Western United Corp. v. Kidwell, 577 F. 2d 1256, 1265-1274. On the merits, the Court of Appeals agreed with the analysis of the District Court. Id., at 1274-1287. We noted probable jurisdiction of the appeal. 439 U. S. 1065. Without reaching either the merits or the constitutional question arising out of the attempt to assert personal jurisdiction over appellants, we now reverse because venue did not lie in the Northern District of Texas. I The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum. See generally C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp. 5-6 (1976) (hereinafter Wright, Miller, & Cooper). On the other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties. See Olberding v. Illinois Central B. Co., 346 U. S. 338, 340; Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 167-168. Accordingly, when there is a sound prudential justification for doing so, we conclude that a court may reverse the normal order of considering personal jurisdiction and venue. Such a justification exists in this case. Although for the reasons discussed in Part II, infra, it is clear that § 27 of the 1934 Act does not provide a basis for personal jurisdiction, the question whether personal jurisdiction was properly obtained pursuant to the Texas long-arm statute is more difficult. Indeed, because the Texas Supreme Court has construed its statute as authorizing the exercise of jurisdiction over nonresidents to the fullest extent permitted by the United States Constitution, resolution of this question would require the Court to decide a question of constitutional law that it has not heretofore decided. As a prudential matter it is our practice to avoid the unnecessary decision of novel constitutional questions. We find it appropriate to pretermit the constitutional issue in this case because it is so clear that venue was improper either under § 27 of the 1934 Act or under § 1391 (b) of the Judicial Code. II The linchpin of Great Western’s argument that venue is provided by § 27 of the 1934 Act is its interpretation of § 28 (a) of that Act. See nn. 9, 10, supra. It reads § 28 (a) as imposing an affirmative “duty” on the State of Idaho, the violation of which may be redressed in the federal courts under § 27. As Mr. Justice Frankfurter said of a similar argument in a similar case, however, “[t]his is a horse soon curried.” Olberding, supra, at 340. The reference in § 27 to the “liabilities] or dut[ies] created by this chapter” clearly corresponds to the various provisions in the 1934 Act that explicitly establish duties for certain participants in the securities market or that subject such persons to possible actions brought by the Government, the Securities and Exchange Commission, or private litigants. Section 28 (a) is not such a provision. There is nothing in its text or its legislative history to suggest that it imposes any duty on the States or that indicates who might enforce any such duty. The section was plainly intended to protect, rather than to limit, state authority. Because § 28 (a) imposed no duty on appellants, the argument that § 27 establishes venue in the District Court is unsupportable. III Nor, as the District Court correctly concluded, is venue available under § 1391 (b). The first test of venue under that provision — the residence of the defendants — obviously points to Idaho rather than Texas. The Court of Appeals reasoned, however, under the second relevant test that the claim arose in Dallas because that is the place where the Idaho officials “invalidly prevented Great Western from initiating a tender offer for Sunshine.” 577 F. 2d, at 1273. The court buttressed its conclusion by noting that a single action against the officials of New York, Maryland, and Idaho could not have been instituted in any one place unless the claim was treated as having arisen in Dallas. Ibid. The easiest answer to this latter argument is that Great Western’s complaint did not in fact raise justiciable claims against any officials save those in Idaho. But that is not the only answer. Although the legal issues raised in the complaint challenging the constitutionality of the statutes of three different States were similar, and the convenience of Great Western would obviously be served by consolidating the three claims for trial in one district, the general venue statute does not authorize the plaintiff to rely on either of those reasons to justify its choice of forum. In most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. For that reason, Congress has generally not made the residence of the plaintiff a basis for venue in nondiversity cases. But cf. 28 TJ. S. C. § 1391 (e). The desirability of consolidating similar claims in a single proceeding may lead defendants, such perhaps as the New York and Maryland officials in this case, to waive valid objections to otherwise improper venue. But that concern does not justify reading the statute to give the plaintiff the right to select the place of trial that best suits his convenience. So long as the plain language of the statute does not open the severe type of “venue gap” that the amendment giving plaintiffs the right to proceed in the district where the claim arose was designed to close, there is no reason to read it more broadly on behalf of plaintiffs. Moreover, the plain language of § 1391 (b) will not bear the Court of Appeals’ interpretation. The statute allows venue in “the judicial district ... in which the claim arose.” Without deciding whether this language adopts the occasionally Active assumption that a claim may arise in only one district it is absolutely clear that Congress did not intend to provide for venue at the residence of the plaintiff or to give that party an unfettered choice among a host of different districts. Denver & R. G. W. R. Co. v. Railroad Trainmen, 387 U. S. 556, 560. Rather, it restricted venue either to the residence of the defendants or to “a place which may be more convenient to the litigants” — i. e., both of them — -“or to the witnesses who are to testify in the case.” S. Rep. No. 1752, 89th Cong., 2d Sess., 3 (1966). See Denver & R. G. W. R. Co., supra, at 560. See also Brunette Machine Works v. Kockum Industries, 406 U. S. 706, 710. In our view, therefore, the broadest interpretation of the language of § 1391 (b) that is even arguably acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility — in terms of the availability of witnesses, the accessibility of.other relevant evidence, and the convenience of the defendant (but not of the plaintiff) — may be assigned as the locus of the claim. Cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 493-494. This case is not, however, unusual. For the claim involved has only one obvious locus — the District of Idaho. Most importantly, it is action that was taken in Idaho by Idaho residents — the enactment of the statute by the legislature, the review of Great Western’s filing, the forwarding of the comment letter by Deputy Administrator Baptie, and the entry of the order postponing the effective date of the tender by Finance Director McEldowney — as well as the future action that may be taken in the State by its officials to punish or to remedy any violation of its law, that provides the basis for Great Western’s federal claim. For this reason, the bulk of the relevant evidence and witnesses — apart from employees of the plaintiff, and securities experts who come from all over the United States — is also located in the State. Less important, but nonetheless relevant, the nature of this action challenging the constitutionality of a state statute makes venue in the District of Idaho appropriate. The merits of Great Western’s claims may well depend on a proper interpretation of the State’s statute, and federal judges sitting in Idaho are better qualified to construe Idaho law, and to assess the character of Idaho’s probable enforcement of that law, than are judges sitting elsewhere. See cases cited in n. 11, supra. We therefore reject the Court of Appeals’ reasoning that the “claim arose” in Dallas because that is where Great Western proposed to initiate its tender offer, and that is where Idaho’s statute had its impact on Great Western. Aside from the fact that these “contacts” between the “claim” and the Texas District fall far short of those connecting the claim and the Idaho District, we note that this reasoning would subject the Idaho officials to suit in almost every district in the country. For every prospective offeree — be he in New York, Los Angeles, Miami, or elsewhere, rather than in Dallas — could argue with equal force (or Great Western could argue on his behalf) that he had intended to direct his local broker to accept the tender and was frustrated in that desire by the Idaho law. As we noted above, however, such a reading of § 1391 (b) is inconsistent with the underlying purpose of the provision, for it would leave the venue decision entirely in the hands of plaintiffs, rather than making it “primarily a matter of convenience of litigants and witnesses.” Denver <& R. G. W. R. Co., supra, at 560. In short, the District of Idaho is the only one in which “the claim arose” within the meaning of § 1391 (b). The judgment of the Court of Appeals is reversed. It is so ordered. 82 Stat. 454; see 15 U. S. C. §§ 78m (d), 78m (e), 78n (d)-78n (f). “The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. . . .” U. S. Const., Art. I, § 8. Chapter 15 of Title 30 of the Idaho Code is entitled “Corporate Takeovers.” Its opening provision contains the following definition: “ ‘Target company’ means a corporation or other issuer of securities which is organized under the laws of this state or has its principal office in this state, which has substantial assets located in this state, whose equity securities of any class are or have been registered under chapter 14, title 30, Idaho Code, or predecessor laws or section 12 of the Securities Exchange Act of 1934, and which is or may be involved in a take-over offer relating to any class of its equity securities.” Idaho Code § 30-1501 (6) (Supp. 1979) (emphasis added). “ 'Offeror’ means a person who makes or in any way participates in making a take-over offer, and includes all affiliates and associates of that person, and all persons acting jointly or in concert for the purpose of acquiring, holding or disposing of or exercising any voting rights attached to the equity securities for which a take-over offer is made. “ 'Take-over offer’ means the offer to acquire or the acquisition of any equity security of a target company, pursuant to a tender offer or request or invitation for tenders, if after the acquisition thereof the offeror would be directly or indirectly a beneficial owner of more than five per cent (5%) of any class of the outstanding equity securities of the issuer.” §§30-1501(3), (5) (Supp. 1979). Baptie, who wrote the letter of comment on March 25, 1977, was not named as a defendant. David H. Leroy has now replaced Kidwell as Attorney General of the State. “The Court has subject matter jurisdiction over this case on four bases: 28 U. S. C. § 1331 (general federal question), 28 U. S. C. § 1332 (diversity), 28 U. S. C. § 1337 (acts affecting commerce) and Section 27 of the [Securities Exchange Act of 1934, 15 U. S. C. § 78aa].” 439 F. Supp., at 430. Tex. Rev. Civ. Stat. Ann., Art. 2031b (Vernon 1964). Section 1391 (b) provides: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.” “The district courts of the United States . . . shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity or actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. . . .” 15 U. S. C. § 78aa. Section 28 (a), as set forth in 15 U. S. C. § 78bb (a), provides in pertinent part: “Nothing 'in this chapter shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder.” E. g., U-Anchor Advertising, Inc. v. Burt, 553 S. W. 2d 760 (Tex. 1977). Appellants argue that this construction is only applicable to private commercial defendants and should not govern either in a suit against the agents of another sovereign State or in one against persons who are not engaged in commercial endeavors. Both the District Court and the Court of Appeals, however, have concluded that the statute does extend to the limits of the Due Process Clause in this case, and it is not our practice to re-examine state-law determinations of this kind. E. g., Butner v. United States, 440 U. S. 48, 57-58; Bishop v. Wood, 426 U. S. 341, 345-346, and n. 8; Propper v. Clark, 337 U. S. 472, 486-487. E. g., § 14 (a) of the 1934 Act, 15 U. S. C. § 78n (a) (“It shall be unlawful for any person ... to solicit any proxy ... in contravention of such rules and regulations as the Commission may prescribe . . .”) (emphasis added); § 16 (b), 15 U. S. C. § 78p (b) (“For the purpose of preventing the unfair use of information which may have been obtained by [the] beneficial owner [of 10% of any class of equity security], director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer . . .”) (emphasis added); § 17 (a)(1), as set forth in 15 U. S. C. §78q (a)(1) (“Every national securities exchange, member thereof, broker or dealer who transacts a business in securities through the medium of any such member, registered securities association, registered broker or dealer, registered municipal securities dealer, registered securities information processor, registered transfer agent, and registered clearing agency . . . shall make and keep . . . such records . . . and make . . . such reports as the Commission, by rule, prescribes . . .”) (emphasis added). Thomas Corcoran, a principal draftsman of the 1934 Act, indicated to Congress that the purpose of § 28 (a) was to leave the States with as much leeway to regulate securities transactions as the Supremacy Clause would allow them in the absence of such a provision. Hearings on S. Res. 84 (72d Cong.), 56, and 97 (73d Cong.) before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 6577 (1934). In particular, the provision was designed to save state blue-sky laws from preemption. See ibid. When one considers the straightforward language of §§ 27 and 28 (a), it is difficult to regard Mr. Justice White’s ingenuous and intricate argument as a realistic reflection of the actual intent of the legislators who enacted these provisions. Nor is the breadth of the venue created by § 27, see post, at 188-189, citing Ritter v. Zuspan, 451 F. Supp. 926, 928 (ED Mich. 1978), a sufficient reason for assuming that that section, rather than some narrower venue provision, applies whenever a suit involves the 1934 Act. See Radzanower v. Touche Ross & Co., 426 U. S. 148. The Court of Appeals properly concluded that the determination of where “the claim arose” for purposes of federal venue under § 1391 is a federal question whose answer depends on federal law. See cases cited in 1 J. Moore, Federal Practice ¶ 0.142 [5.-2], pp. 1429-1430 (1979); Wright, Miller, & Cooper § 3803, pp. 10-13. See Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 493-494; Denver & R. G. W. R. Co. v. Railroad Trainmen, 387 U. S. 556, 560; Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 168; Reuben H. Donnelley Cory. v. FTC, 580 F. 2d 264, 269 (CA7 1978). See Brunette Machine Works v. Kockum Industries, 406 U. S. 706, 710, and n. 8. As Brunette indicates, the amendment of § 1391 to provide for venue where the claim arose was designed to close the "venue gaps” that existed under earlier versions of the statute in situations in which joint tortfeasors, or other multiple defendants who contributed to a single injurious act, could not be sued jointly because they resided in different districts. 406 U. S., at 710 n. 8. In this case, by contrast, Great Western has attempted to join in one suit three separate claims — each challenging a different statute — against three sets of defendants from three States. The statute simply does not contemplate such a choice on the part of plaintiffs. “The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal’ construction.” Olberding v. Illinois Central R. Co., 346 U. S. 338, 340. The two sides of this question, and the eases supporting each, are discussed in 1 Moore, supra n. 15, at ¶ 0.142 [5.-2], pp. 1426-1435; Wright, Miller, & Cooper § 3806, pp. 28-34. See ALI, Study of Division of Jurisdiction Between State and Federal Courts, Commenuary 136-137 (1969). At the trial held in the Northern District of Texas, the witness roster, in addition to various Idaho officials and Great Western employees from Dallas, mainly included experts from the New York area as well as one each from California, Maryland, Texas, and Wisconsin. App. 100-292. Sunshine's shareholders are located in 49 States as well as the District of Columbia and Puerto Rico. Id., at 36. In Denver & R. G. W. R. Co., the Court concluded that the drafters of § 1391 (b) did not intend to provide venue in suits against unincorporated associations in every district in which a member of the association resided. To do so, it noted, would give the plaintiff an unrestrained choice of venues and would accordingly be “patently unfair” to the defendant. 387 U. S., at 560. A like reasoning is controlling here.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
NANTAHALA POWER & LIGHT CO. et al. v. THORNBURG, ATTORNEY GENERAL OF NORTH CAROLINA, et al. No. 85-568. Argued April 21, 1986 Decided June 17, 1986 O’Connor, J., delivered the opinion of the Court, in which all other Members joined, except Powell and Stevens, JJ., who took no part in the consideration or decision of the case. Rex E. Lee argued the cause for appellants. With him on the briefs were David W. Carpenter, Ronald D. Jones, David R. Poe, M. Reamy Ancarrow, Edward S. Finley, Jr., and William D. Johnson. Deputy Solicitor General Cohen argued the cause for the United States as amicus curiae urging reversal. On the brief for the United States et al. were Solicitor General Fried, William H. Satterfield, and Jerome M. Feit. William T. Crisp argued the cause for appellees. With him on the brief were Lacy H. Thornburg, Attorney General of North Carolina, pro se, Richard L. Griffin, Assistant Attorney General, James D. Little, and Robert F. Page. Briefs of amici curiae urging reversal were filed for the State of Tennessee by W. J. Michael Cody, Attorney General, Jim G. Creecy, Associate Chief Deputy Attorney General, and Charles L. Lewis, Deputy Attorney General; for the Edison Electric Institute by Robert L. Baum and Richard M. Merriman; and for the New England Electric System by Frederic E. Greenman. Briefs of amici curiae urging affirmance were filed for the North Carolina Utilities Commission by Wilson B. Partin, Jr.; and for the town of Highlands by James N. Horwood. Justice O’Connor delivered the opinion of the Court. The Nantahala Power & Light Company (Nantahala) and Tapoco, Inc. (Tapoco), are both wholly owned subsidiaries of the Aluminum Company of America (Alcoa). Tapoco and Nantahala each own hydroelectric power plants on the Little Tennessee River. Almost all of the power that they produce goes to the Tennessee Valley Authority (TVA). In exchange for allowing TVA to pour into its grid the variable-quantity of power produced by Tapoco’s and Nantahala’s facilities, Tapoco and Nantahala jointly receive a fixed supply of low-cost “entitlement power” from TVA. In addition, Nantahala buys a variable amount of high-cost “purchased power” from the TVA grid. Tapoco sells all its power to Alcoa; Nantahala serves public customers. For the purposes of calculating the rate to be charged Nantahala’s retail customers, all of whom are in North Carolina, the Utilities Commission of North Carolina (NCUC) chose an allocation of entitlement and purchased power between Tapoco and Nantahala that differs from the allocation of entitlement power between Tapoco and Nantahala adopted by the Federal Energy Regulatory Commission (FERC) in a wholesale ratemaking proceeding. The North Carolina Supreme Court upheld NCUC’s allocation. We noted probable jurisdiction to decide whether NCUC’s allocation may stand in light of FERC’s ruling. 474 U. S. 1018 (1985). We hold that NCUC’s allocation of entitlement and purchased power is pre-empted by federal law. I A This case involves a number of agreements, all of which concern the power grid of TVA. Under the New Fontana Agreement (NFA), to which TVA, Tapoco, and Nantahala are parties, TVA operates all of Tapoco’s hydroelectric facilities and 8 of the 11 dams owned by Nantahala. The facilities operated by TVA produce an amount of power that varies in magnitude with the fullness of the harnessed streams. The NFA gives TVA the right to pour all that power into the TVA grid. In exchange, TVA provides jointly to Tapoco and Nantahala a constant annual allocation of low-cost “entitlement power” of 1.8 billion kilowatt-hours per year. The NFA is on file with FERC as a rate schedule. Nantahala Power & Light Co., 19 FERC ¶61,152, p. 61,274 (1982). Under the 1971 Apportionment Agreement (AA), to which Tapoco and Nantahala are parties, Tapoco is entitled to 1.44 billion kilowatt-hours per year of the entitlement power, and Nantahala is entitled to the remaining 0.36 billion kilowatt-hours per year. The AA therefore allocates 80% of the entitlement power to Tapoco and 20% of the entitlement power to Nantahala. The AA was filed with FERC in 1980 as an appendix to a proposed wholesale rate schedule filed with FERC. Id., at 61,275. Under a Purchase Agreement to which TVA and Nantahala are parties, Nantahala may purchase additional power from the TVA grid. This “purchased power” is generated in part by nonhydroelectric plants, which is generally a more expensive way to produce electricity than the hydroelectric generation used to produce the entitlement power. As a result, purchased power is about three times as expensive to generate as is entitlement power. Tapoco does not itself purchase additional power from TVA, although Alcoa purchases some high-cost power directly from TVA and uses some of Tapoco’s equipment to obtain that power. Tapoco’s only customer is an Alcoa plant in Alcoa, Tennessee, while Nantahala serves various wholesale and retail customers in North Carolina. Tapoco’s sales to Alcoa and Nantahala’s sales to its wholesale customers are governed by FERC-filed rates, while Nantahala’s rates to its retail customers are set by NCUC. B In 1976, Nantahala filed a proposed wholesale rate increase with FERC, which has exclusive jurisdiction over interstate wholesale power rates. 16 U. S. C. § 824(b). See also §§824d, 824e. FERC is to determine a “just and reasonable” rate for such power, §824d(a), and Congress has specified various procedures for, and limitations on, the filing of such proposed and approved rates, §§824d(c), (d), (e). In 1978, the town of Highlands (Highlands), a wholesale customer of Nantahala, filed a complaint with FERC. See §824e(a). This complaint alleged that Alcoa, Tapoco, and Nantahala had violated the Federal Power Act by diverting, to Alcoa’s private use, hydroelectric power and facilities dedicated to the public service. The Attorney General of North Carolina intervened in support of Highlands’ position on behalf of Nantahala’s customers. Because both the proceedings concerning the proposed wholesale rate increase and the proceedings concerning the Highlands complaint eventually involved allegations that Nantahala’s costs had been unreasonably increased by misuse of the corporate form, FERC consolidated the two proceedings and resolved them in an opinion issued in May 1982. 19 FERC ¶ 61,152. Highlands asked FERC to treat the commonly owned Tapoco and Nantahala as a single entity for ratemaking purposes, and to “roll in” their separate costs into the same rate base: “Highlands contends that because Nantahala and Tapoco have commingled their assets and liabilities under the NFA, it is not possible to derive a rational method of apportioning costs and benefits on any basis other than a rolled-in cost of service. The town asks [FERC] to pierce the corporate veil between the two utilities and treat them as one entity for ratemaking purposes, to set aside the [AA], to develop Nantahala’s rates on a rolled-in cost of service basis, and to order Alcoa and Tapoco to establish an interconnection with Highlands.” Id., at 61,275. FERC acknowledged that corporate entities may be disregarded when used to subvert clear legislative intent. See Schenley Distillers Corp. v. United States, 326 U. S. 432, 437 (1946) (per curiam). See also General Telephone Co. v. United States, 449 F. 2d 846, 855 (CA5 1971). Nonetheless, FERC declined to pierce the corporate veil. The particular history of Tapoco and Nantahala, as well as their current separation of customers and management, led FERC to conclude that it could not “find that Alcoa has used the separate corporate identities of Nantahala and Tapoco to frustrate the purposes of the Federal Power Act, or that the two companies operate as an integrated system.” 19 FERC, at 61,277. FERC concluded that the NFA was “the result of arms’ length bargaining.” Id., at 61,278. FERC found that the AA, in contrast, was unfair to Nantahala. In the A A, Nantahala relinquished certain benefits it had received under an earlier agreement apportioning the entitlement power, but apparently obtained no compensation for that relinquishment. FERC concluded that “the most equitable division of entitlements would give Nantahala that portion of the NFA entitlements which is proportionate to the utility’s actual contribution of power turned over to TV A.” This portion was 22.5% in FERC’s estimation, rather than the 20% of the entitlements power allocated to Nantahala by the AA. Id., at 61,280. FERC stated that its decision did not “reform” the A A, but would “provide entitlements to Nantahala which will result in just and reasonable rates to its wholesale customers.” Ibid. FERC therefore required Nantahala to file revised rates in accordance with its decision, and to refund any excess amounts collected. In September 1982, FERC denied rehearing on its May opinion. Nantahala attempted to introduce new evidence that FERC’s decision should take fuller account of differences in the kind of power best suited to Nantahala and Tapoco. (Nantahala serves residential customers and therefore needs a continuous, predictable power supply. Tapoco’s industrial customer — Alcoa—requires a certain minimum amount of power at a given time to operate its facilities efficiently, but can periodically cease operations if sufficient power is not available.) FERC refused to consider Nantahala’s new submission of evidence: “In determining just and reasonable rates..., [FERC] did not choose to reform the [AA] and was not concerned with the mechanics of how entitlements of energy from TVA are allocated to each party, as long as each party receives its fair share of energy based on that party’s contribution of actual energy turned over to TVA.... Our concern is that each party receive its proper entitlement. Nantahala entered into a[n] [AA] which we find unfair. As a result, the company had to make purchases from TVA which otherwise would not have had to be made. Nantahala must bear the consequences of its acts and refund rates collected to recover the cost of the excess purchases.” Nantahala Power & Light Co., 20 FERC ¶61,430, p. 61,871 (1982). FERC’s decision was upheld on appeal to the United States Court of Appeals for the Fourth Circuit. Nantahala Power & Light Co. v. FERC, 727 F. 2d 1342, 1348 (1984). FERC’s decision has a direct bearing on this case, but the decision before us is an opinion of the North Carolina Supreme Court that affirmed a NCUC order. That order resulted from Nantahala’s request to raise its intrastate retail rates, over which NCUC has exclusive jurisdiction. The Attorney General of North Carolina intervened on behalf of Nantahala’s retail customers. Some of Nantahala’s wholesale customers also intervened. In contrast to FERC, NCUC decided that Nantahala and Tapoco were a “single, integrated electric system,” and that, “for purposes of setting Nantahala’s rates in this proceeding, the Nantahala and Tapoco systems should be treated as one entity with respect to all matters affecting the determination of Nantahala’s reasonable cost of service applicable to its North Carolina retail operations.” App. to Juris. Statement 182a. NCUC concluded that there were extensive “concealed benefits” to Tapoco from the AA and that “extensive injustice” to Nantahala thereby resulted. Id., at 183a-197a. Similarly, NCUC found a number of concealed benefits to Tapoco and injustices to Nantahala resulting from the NFA. NCUC concluded that it was therefore appropriate to “reject [Tapoco’s and Nantahala’s] proposed allocation methodology in that said methodology in all material respects is based upon the New Fontana Agreement and the Tapoco-Nantahala Apportionment Agreement.” Id., at 205a. See also id., at 215a. NCUC instead adopted the roll-in methodology proposed by the intervenors, which pooled various sources of power available to Tapoco and Nantahala and then allocated the pooled power according to demand. NCUC included in the pool all of the power generated by the Tapoco- or Nantahalaowned facilities operated by TV A, despite the fact that the NFA gave Tapoco and Nantahala the right only to the lesser amount of entitlements power. NCUC included Nantahala’s purchased power in the pool, but excluded the power that Alcoa purchased directly from TVA. After accounting for assumed transmission and other losses, NCUC calculated the pool available to the Tapoco-Nantahala system to be 1.85 billion kilowatt-hours. Id., at 220a. NCUC then calculated Nantahala’s demand (from both wholesale and retail customers) to be approximately 0.45 billion kilowatt-hours. Dividing Nantahala’s demand of 0.45 billion kilowatt-hours by the 1.85 billion kilowatt-hours of supply available in the Tapoco-Nantahala pool produces a ratio of approximately 24.5%. NCUC used this ratio as Nantahala’s share of the total costs of the Tapoco-Nantahala system. Id., at 220a-221a. NCUC did not differentially allocate costs from various sources of power to Tapoco and Nantahala. Approximately 24.5% of the cost of each source of power was therefore allocated to Nantahala, with approximately 75.5% remaining for Tapoco. Among the sources of power, of course, was the entitlements power. Under the NCUC order, therefore, Nantahala must calculate its costs for purposes of retail ratemaking in North Carolina as if it received 24.5% of the entitlement power, though the FERC order requires it to calculate its costs for purposes of wholesale ratemaking as if it received 22.5% of the entitlement power. NCUC therefore not only expressly rejected the fairness of the NFA and the AA, but employed an allocation of entitlement power that nowhere takes into account FERC’s allocation of that same power. Appellants here challenged NCUC’s allocation in the North Carolina courts. The North Carolina Court of Appeals and the North Carolina Supreme Court affirmed NCUC’s decision. In an admirably thorough consideration of the myriad issues before it, the North Carolina Supreme Court concluded that NCUC had violated neither the Supremacy nor the Commerce Clause. State ex rel. Utilities Comm’n v. Nantahala Power & Light Co., 313 N. C. 614, 332 S. E. 2d 397 (1985). It acknowledged that FERC has exclusive jurisdiction over interstate wholesale rates. Id., at 686-687, 332 S. E. 2d, at 440. It concluded nonetheless that NCUC, in deciding to prevent Nantahala from recovering costs based on a failure to reach a fair NFA and AA, was “well within the field of exclusive state rate making authority engendered by the ‘bright line’ between state and federal regulatory jurisdiction under the Federal Power Act.” Id., at 687-688, 332 S. E. 2d, at 441. The North Carolina Supreme Court emphasized that NCUC had not expressly required Nantahala to disobey any order entered by FERC: “[NCUC’s] examination of the NFA and [AA] was not undertaken in an effort to either establish wholesale rates or to modify agreements filed with and approved by the FERC. In its order reducing rates [NCUC] expressly rejected the remedy of reforming these agreements to award Nantahala its just level of entitlements and nothing contained in [NCUC’s] order purports to change or modify a single word of the several contracts or agreements involved, or the actual flow of power thereunder.” Id., at 688, 332 S. E. 2d, at 440-441. The North Carolina Supreme Court also stated that the utilities’ statutory pre-emption arguments rested upon a misconception that FERC had found the NFA and AA to be fair and reasonable to Nantahala, when in fact FERC had ruled that the AA was unfair. Id., at 693, 332 S. E. 2d, at 444. Finally, the court determined that NCUC’s actions had not placed an excessive burden on interstate commerce. Id., at 710-718, 332 S. E. 2d, at 454-458. II A Appellants argue that the North Carolina Supreme Court’s decision is inconsistent with the “filed rate” doctrine, which in pertinent part holds that interstate power rates filed with FERC or fixed by FERC must be given binding effect by state utility commissions determining intrastate rates. Appellants assert that NCUC’s allocation of Tapoco’s and Nantahala’s entitlement power is inconsistent with FERC’s allocation, and that the North Carolina Supreme Court’s affirmance of NCUC’s decision is therefore inconsistent with pre-emptive federal law. As developed for purposes of the Federal Power Act, the “filed rate” doctrine has its genesis in Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U. S. 246, 251-252 (1951). There, this Court examined the reach of ratemakings by FERC’s predecessor, the Federal Power Commission (FPC). In Montana-Dakota, two power companies with interlocking directorates and joint corporate officers each received some of the other’s power, at rates that the FPC had determined were reasonable. After separation of the two companies’ management, one of the companies alleged that it had paid unreasonably high rates for the electricity that it had received and been paid unreasonably low rates for the electricity that it had provided. The complaining company laid the blame for these allegedly fraudulent and unlawful rates at the door of the previously interlocking management, and brought suit in federal court. This Court dismissed the claim. Emphasizing that Congress had given the FPC the right to determine the reasonableness of rates, the Court stated: “[The complaining company] cannot separate what Congress has joined together. It cannot litigate in a judicial forum its general right to a reasonable rate, ignoring the qualification that it shall be made specific only by exercise of the Commission’s judgment, in which there is some considerable element of discretion. It can claim no rate as a legal right that is other than the filed rate, whether fixed or merely accepted by the Commission, and not even a court can authorize commerce in the commodity on other terms. “We hold that the right to a reasonable rate is the right to the rate which the Commission files or fixes, and that, except for review of the Commission’s orders, the court can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.” Id., at 251-252. The existence of the interlocking management of the two utilities, and the resulting allegations of fraud, were irrelevant: “Perhaps, in the absence of the Commission’s approval, such relationship would be sufficient to raise the presumption [of fraud] under state law, but it cannot do so where the federal supervising authority has expressly approved the arrangement.” Id., at 253. This Court has held that the filed rate doctrine applies not only to the federal-court review at issue in Montana-Dakota, but also to decisions of state courts. In this application, the doctrine is not a rule of administrative law designed to ensure that federal courts respect the decisions of federal administrative agencies, but a matter of enforcing the Supremacy Clause. In Arkansas Louisiana Gas Co. v. Hall, 453 U. S. 571 (1981), for example, this Court overturned a state court’s decision that, in calculating damages in a breach-of-contract suit, assumed that the FPC would have approved certain rates as reasonable and thus allowed the utility to charge that rate, although the rates were never in fact filed with the FPC: “[U]nder the filed rate doctrine, the [FPC] alone is empowered to make that judgment [of reasonableness], and until it has done so, no rate other than the one on file may be charged.... The court below, like the state court in [Chicago & North Western Transp. Co. v.] Kalo Brick [& Tile Co., 450 U. S. 311 (1981)], has consequently usurped a function that Congress has assigned to a federal regulatory body. This the Supremacy Clause will not permit.” Id., at 581-582. In Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U. S. 311 (1981), the Court similarly noted that the filed rate doctrine as applied to the actions of the Interstate Commerce Commission assisted in the enforcement of the supremacy of federal law: “The common rationale of these cases is easily stated: ‘[T]here can be no divided authority over interstate commerce, and... the acts of Congress on that subject are supreme and exclusive.’ Missouri Pacific R. Co. v. Stroud, 267 U. S. 404, 408 (1925). Consequently, state efforts to regulate commerce must fall when they conflict with or interfere with federal authority over the same activity.” Id., at 318-319. See also Maryland v. Louisiana, 451 U. S. 725 (1981). Even in contexts not directly addressed by Arkansas Louisiana Gas, supra, many state courts have applied the filed rate doctrine of Montana-Dakota to decisions of state utility commissions and state courts that concern matters addressed in FERC ratemakings. Some state courts have examined this interplay in determining the effect of FERC-approved wholesale power rates on retail rates for electricity. See Narragansett Electric Co. v. Burke, 119 R. I. 559, 381 A. 2d 1358 (1977), cert. denied, 435 U. S. 972 (1978); Eastern Edison Co. v. Department of Public Utilities, 388 Mass. 292, 446 N. E. 2d 684 (1983). Others have examined the effect of FERC-approved wholesale rates for natural gas upon retail gas prices. See Public Service Co. of Colorado v. Public Utilities Comm’n, 644 P. 2d 933 (Colo. 1982); United Gas Corp. v. Mississippi Public Service Comm’n, 240 Miss. 405, 127 So. 2d 404 (1961); City of Chicago v. Illinois Commerce Comm’n, 13 Ill. 2d 607, 150 N. E. 2d 776 (1958); Citizens Gas Users Assn. v. Public Utility Comm’n, 165 Ohio St. 536, 138 N. E. 2d 383 (1956). In both contexts, these courts have concluded that a state utility commission setting retail prices must allow, as reasonable operating expenses, costs incurred as a result of paying a FERC-determined wholesale price: “[T]he Supreme Court has said that a reasonable rate is that rate filed with or fixed by the FPC. [Citing Montana-Dakota, 341 U. S. 246 (1951).] ‘[N]ot even a court can authorize commerce in the commodity on other terms.’ Id., at 251.... Thus the rate increase in the cost of electricity to Narragansett, filed and bonded by [the supplier], constitutes an actual operating expense and must be so viewed by the [state utility commission].” Narragansett, supra, at 566, 381 A. 2d, at 1362. See Eastern Edison, supra, at 297-300, 446 N. E. 2d, at 687-689; Public Service Co., supra, at 938-940; United Gas Corp., supra, at 437-443, 127 So. 2d, at 418-420; City of Chicago, supra, at 615-616, 150 N. E. 2d, at 780-781; Citizens Gas Users Assn., supra, at 538, 138 N. E. 2d, at 384. Many of these cases involved purchases by closely related entities, but these courts have uniformly concluded that FERC’s regulation still pre-empted review by state utility commissions of FERC-approved rates. See Narragansett, supra, at 561, 567, 381 A. 2d, at 1359, 1362-1363 (retailer was wholly owned subsidiary of wholesaler); Eastern Edison, supra, at 293, 446 N. E. 2d, at 685 (same); United Gas Corp., supra, at 437, 442, 127 So. 2d, at 418, 420 (same); City of Chicago, supra, at 609, 615-616, 150 N. E. 2d, at 777, 780-781 (retailer owned 100% of one wholesale supplier and 70% of another). These decisions are properly driven by the need to enforce the exclusive jurisdiction vested by Congress in FERC over the regulation of interstate wholesale utility rates: “[O]ur decisions have squarely rejected the view... that the scope of FPC jurisdiction over interstate sales of gas or electricity at wholesale is to be determined by a case-by-case analysis of the impact of state regulation upon the national interest. Rather, Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction, making unnecessary such case-by-case analysis. This was done in the Power Act by making FPC jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States.” FPC v. Southern California Edison Co., 376 U. S. 205, 215-216 (1964). No such explicit exception by Congress has been alleged here. FERC clearly has exclusive jurisdiction over the rates to be charged Nantahala’s interstate wholesale customers. See 16 U. S. C. § 824(b); New England Power Co. v. New Hampshire, 455 U. S. 331, 340 (1982). Once FERC sets such a rate, a State may not conclude in setting retail rates that the FERC-approved wholesale rates are unreasonable. A State must rather give effect to Congress’ desire to give FERC plenary authority over interstate wholesale rates, and to ensure that the States do not interfere with this authority. Moreover, the filed rate doctrine is not limited to “rates” per se: “our inquiry is not at an end because the orders do not deal in terms of prices or volumes of purchases.” Northern Natural Gas Co. v. Kansas Corporation Comm’n, 372 U. S. 84, 90-91 (1963). Here FERC’s decision directly affects Nantahala’s wholesale rates by determining the amount of low-cost power that it may obtain, and FERC required Nantahala’s wholesale rate to be filed in accordance with that allocation. FERC’s allocation of entitlement power is therefore presumptively entitled to more than the negligible weight given it by NCUC. B The North Carolina Supreme Court was well aware that “state courts which have considered the question have uniformly agreed that a utility’s costs based upon a FERC-filed rate must be treated as a reasonably incurred operating expense for the purposes of setting an appropriate retail rate.” 313 N. C., at 692, 332 S. E. 2d, at 443. The North Carolina court did not reject the conclusions of those courts. Rather, it held that reliance on such cases was “misplaced” in light of the fact that the Narragansett line of cases has not held the filed rate doctrine “to preclude state authority to determine whether these costs should be automatically passed through to retail consumers in the form of higher rates.” 313 N. C., at 693-694, 332 S. E. 2d, at 444. This interpretation of the Narragansett line of cases is at best an oversimplification, and in any event does not save NCUC’s action from preemption. In both Narragansett, supra, and Public Service Co., supra, the courts observed that an increase in FERCapproved wholesale rates need not lead to an increase in retail rates. Both decisions expressly stated, however, that such a divergence between wholesale and retail rates would occur only if costs other than those resulting from the purchases of FERC-regulated power or gas were to decrease. See Narragansett, 119 R. I., at 568, 381 A. 2d, at 1363 (“The commission... may treat the proposed rate increase as it treats other filings... and investigate the overall financial structure of [the power company] to determine whether the company has experienced savings in other areas which might offset the increased price”) (emphasis added); Public Service Co., 644 P. 2d, at 941 (“[The commission] may treat the [increase] as it treats other filings for proposed rate increases... [and] investigate whether [either of the gas companies] has experienced savings in other areas which might offset the increased price for natural gas to consumers”) (emphasis added). This qualification is perfectly sensible. If, for example, the FERC-approved price of wholesale power rises slightly but a retailer’s costs of transformation and transmission significantly decline, the retailer’s overall costs might well decrease. A decrease in its retail rates might therefore be appropriate even though the cost of purchasing FERCregulated power had increased. But in this case, there is no finding or indication that Nantahala’s costs of obtaining purchased power have decreased,	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
THE COLONY, INC., v. COMMISSIONER OF INTERNAL REVENUE. No. 306. Argued April 3, 1958. Decided June 9, 1958. A. Robert Doll argued the cause for petitioner. With him on the brief were B. H. Barnett and Richard C. Oldham. Joseph F. Goetten argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and Grant W. Wiprud. Mr. Justice Harlan delivered the opinion of the Court. The sole question in this case is whether assessments by the Commissioner of two asserted tax deficiencies were barred by the three-year statute of limitations provided in the Internal Revenue Code of 1939. Under the 1939 Code the general statute of limitations governing the assessment of federal income tax deficiencies is fixed at three years from the date on which the taxpayer filed his return, § 275 (a), 53 Stat. 86, except in cases involving a fraudulent return or failure to file a return, where a tax may be assessed at any time. § 276 (a), 53 Stat. 87. A special five-year period of limitations is provided when a taxpayer, even though acting in good faith, “omits from gross income an amount properly includible therein which is in excess of 25 per centum of the amount of gross income stated in the return . . . § 275 (c), 53 Stat. 86. In either case the period of limitation may be extended by a written waiver executed by the taxpayer within the statutory or any extended period of limitation. § 276 (b), 53 Stat. 87. The Commissioner assessed deficiencies in the taxpayer’s income taxes for each of the fiscal years ending October 31, 1946, and 1947, within the extended period provided in waivers which were executed by the taxpayer more than three but less than five years after the returns were filed. There was no claim that the taxpayer had inaccurately reported its gross receipts. Instead, the deficiencies were based upon the Commissioner’s determination that the taxpayer had understated the gross profits on the sales of certain lots of land for residential purposes as a result of having overstated the “basis” of such lots by erroneously including in their cost certain unallowable items of development expense. There was no claim that the returns were fraudulent. The Tax Court sustained the Commissioner. It held that substantial portions of the development costs were properly disallowed, and that these errors by the taxpayer had resulted in the understatement of the taxpayer’s total gross income by 77.2% and 30.7%, respectively, of the amounts reported for the taxable years 1946 and 1947. In addition, the Tax Court held that in these circumstances the five-year period of limitation provided for in § 275 (c) was applicable. It took the view that the statutory language, “omits from gross income an amount properly includible therein,” embraced not merely the omission from a return of an item of income received by or accruing to a taxpayer, but also an understatement of gross income resulting from a taxpayer’s miscalculation of profits through the erroneous inclusion of an excessive item of cost. 26 T. C. 30. On the taxpayer’s appeal to the Court of Appeals the only question raised was whether the three-year or the five-year statute of limitations governed the assessment of these deficiencies. Adhering to its earlier decision in Reis v. Commissioner, 142 F. 2d 900, the Court of Appeals affirmed. 244 F. 2d 75. We granted certiorari because this decision conflicted with rulings in other Courts of Appeals on the same issue, and because the question as to the proper scope of § 275 (c), although resolved for the future by § 6501 (e)(1)(A) of the Internal Revenue Code of 1954, p. 37, infra, remains one of substantial importance in the administration of the income tax laws for earlier taxable years. 355 U. S. 811. In determining the correct interpretation of § 275 (c) we start with the critical statutory language, “omits from gross income an amount properly includible therein.” The Commissioner states that the draftsman’s use of the word “amount” (instead of, for example, “item”) suggests a concentration on the quantitative aspect of the error — that is, whether or not gross income was understated by as much as 25%. This view is somewhat reinforced if, in reading the above-quoted phrase, one touches lightly on the word “omits” and bears down hard on the words “gross income,” for where a cost item is overstated, as in the case before us, gross income is affected to the same degree as when a gross-receipt item of the same amount is completely omitted from a tax return. On the other hand, the taxpayer contends that the Commissioner’s reading fails to take full account of the word “omits,” which Congress selected when it could have chosen another verb such as “reduces” or “understates,” either of which would have pointed significantly in the Commissioner’s direction. The taxpayer also points out that normally “statutory words are presumed to be used in their ordinary and usual sense, and with the meaning commonly attributable to them.” DeGanay v. Lederer, 250 U. S. 376, 381. “Omit” is defined in Webster’s New International Dictionary (2d ed. 1939) as “To leave out or unmentioned; not to insert, include, or name,” and the Court of Appeals for the Sixth Circuit has elsewhere similarly defined the word. Ewald v. Commissioner, 141 F. 2d 750, 753. Relying on this definition, the taxpayer says that the statute is limited to situations in which specific receipts or accruals of income items are left out of the computation of gross income. For reasons stated below we agree with the taxpayer’s position. Although we are inclined to think that the statute on its face lends itself more plausibly to the taxpayer’s interpretation, it cannot be said that the language is unambiguous. In these circumstances we turn to the legislative history of§275 (c). We find in that history persuasive evidence that Congress was addressing itself to the specific situation where a taxpayer actually omitted some income receipt or accrual in his computation of gross income, and not more generally to errors in that computation arising from other causes. Section 275 (c) first appeared in the Revenue Act of 1934. 48 Stat. 680. As introduced in the House the bill simply added the gross-income provision to § 276 of the Revenue Act of 1932, 47 Stat. 169, relating to fraudulent returns and cases where no return had been filed, and carried with it no period of limitations. The intended coverage of the proposed provision was stated in a Report of a House Ways and Means Subcommittee as follows: “Section 276 provides for the assessment of the tax without regard to the statute of limitations in case of a failure to file a return or in case of a false or fraudulent return with intent to evade tax. “Your subcommittee is of the opinion that the limitation period on assessment should also not apply to certain cases where the taxpayer has understated his gross income on his return by a large amount, even though fraud with intent to evade tax cannot be established. It is, therefore, recommended that the statute of limitations shall not apply where the taxpayer has failed to disclose in his return an amount of gross income in excess of 25 percent of the amount of the gross income stated in the return. The Government should not be penalized when a taxpayer is so negligent as to leave out items of such magnitude from his return.” Hearings before the House Committee on Ways and Means, 73d Cong., 2d Sess. 139. This purpose of the proposal was related to the full Committee in the following colloquy between Congressman Cooper of Tennessee, speaking for the Subcommittee, and Mr. Roswell Magill, representing the Treasury: “Mr. Cooper. What we really had in mind was just this kind of a situation: Assume that a taxpayer left out, say, a million dollars; he just forgot it. We felt that whenever we found that he did that we ought to get the money on it, the tax on it. “Mr. Magill. I will not argue against you on that score. “Mr. Cooper. In other words, if a man is so negligent and so forgetful, or whatever the reason is, that he overlooks an item amounting to as much as 25 percent of his gross income, that we simply ought to have the opportunity of getting the tax on that amount of money.” House Hearings, supra, at 149. The full Committee revealed the same attitude in its report: “It is not believed that taxpayers who are so negligent as to leave out of their returns items of such magnitude should be accorded the privilege of pleading the bar of the statute.” H. R. Rep. No. 704, 73d Cong., 2d Sess. 35. The Senate Finance Committee approved of the intended coverage and language of the bill, except that it believed the statute of limitations should not be kept open indefinitely in the case of an honest but negligent taxpayer. Its report stated: “. . . Your committee is in general accord with the policy expressed in this section of the House bill. However, it is believed that in the case of a taxpayer who makes an honest mistake, it would be unfair to keep the statute open indefinitely. For instance, a case might arise where a taxpayer failed to report a dividend because he was erroneously advised by the officers of the corporation that it was paid out of capital or he might report as income for one year an item of income which properly belonged in another year. Accordingly, your committee has provided for a 5-year statute in such cases.” S. Rep. No. 558, 73d Cong., 2d Sess. 43-44. Except for embodying the five-year period of limitation, § 275 (c), as passed, reflects no change in the original basic objective underlying its enactment. As rebutting these persuasive indications that Congress merely had in mind failures to report particular income receipts and accruals, and did not intend the five-year limitation to apply whenever gross income was understated, the Commissioner stresses the occasional use of the phrase “understates gross income” in the legislative materials. The force of this contention is much diluted, however, when it is observed that wherever this general language is found its intended meaning is immediately illuminated by the use of such phrases as “failed to disclose” or “to leave out” items of income. See Uptegrove Lumber Co. v. Commissioner, 204 F. 2d 570, 572. The Commissioner also suggests that in enacting § 275 (c) Congress was primarily concerned with providing for a longer period of limitations where returns contained relatively large errors adversely affecting the Treasury, and that effect can be given this purpose only by adopting the Government’s broad construction of the statute. But this theory does not persuade us. For if the mere size of the error had been the principal concern of Congress, one might have expected to find the statute cast in terms of errors in the total tax due or in total taxable net income. We have been unable to find any solid support for the Government’s theory in the legislative history. Instead, as the excerpts set out above illustrate, this history shows to our satisfaction that the Congress intended an exception to the usual three-year statute of limitations only in the restricted type of situation already described. We think that in enacting § 275 (c) Congress manifested no broader purpose than to give the Commissioner an additional two years to investigate tax returns in cases where, because of a taxpayer’s omission to report some taxable item, the Commissioner is at a special disadvantage in detecting errors. In such instances the return on its face provides no clue to the existence of the omitted item. On the other hand, when, as here, the understatement of a tax arises from an error in reporting an item disclosed on the face of the return the Commissioner is at no such disadvantage. And this would seem to be so whether the error be one affecting “gross income” or one, such as overstated deductions, affecting other parts of the return. To accept the Commissioner’s interpretation and to impose a five-year limitation when such errors affect “gross income,” but a three-year limitation when they do not, not only would be to read § 275 (c) more broadly than is justified by the evident reason for its enactment, but also to create a patent incongruity in the tax law. See Uptegrove Lumber Co. v. Commissioner, supra, at 573. Finally, our construction of § 275 (c) accords with the interpretations in the more recent decisions of four different Courts of Appeals. See note 2, supra. The force of the reasoning in these opinions was recognized by the Court of Appeals in the present case, which indicated that it might have agreed with those courts had the matter been res nova in its circuit. 244 F. 2d, at 76. And without doing more than noting the speculative debate between the parties as to whether Congress manifested an intention to clarify or to change the 1939 Code, we observe that the conclusion we reach is in harmony with the unambiguous language of § 6501 (e)(1)(A) of the Internal Revenue Code of 1954. We hold that both tax assessments before us were barred by the statute of limitations. Reversed. The Chief Justice and Mr. Justice Black would follow the interpretation consistently given § 275 (c) by the Tax Court for many years and affirm the judgment of the Court of Appeals in this case. See cases cited in note 2 of the Court’s opinion. The pertinent provisions of the 1939 Code are: “SEC. 275. PERIOD OF LIMITATION UPON ASSESSMENT AND COLLECTION. “Except as provided in section 276— “(a) GeNeral Rule. — -The amount of income taxes imposed by this chapter shall be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period. “(c) OmissioN from Gross Income. — If the taxpayer omits from gross income an amount properly includible therein which is in excess of 25 per centum of the amount of gross income stated in the return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within 5 years after the return was filed. “SEC. 276. SAME — EXCEPTIONS. “(a) False Return or No Return. — In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time. “(b) Waiver.- — -Where before the expiration of the time prescribed in section 275 for the assessment of the tax, both the Commissioner and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.” In conflict with this case are decisions in four different Courts of Appeals. Uptegrove Lumber Co. v. Commissioner, 204 F. 2d 570 (C. A. 3d Cir.); Deakman-Wells Co. v. Commissioner, 213 F. 2d 894 (C. A. 3d Cir.); Slaff v. Commissioner, 220 F. 2d 65 (C. A. 9th Cir.); Davis v. Hightower, 230 F. 2d 549 (C. A. 5th Cir.); Goodenow v. Commissioner, 238 F. 2d 20 (C. A. 8th Cir.). The Court of Claims has also held to the contrary of the present case. Lazarus v. Commissioner, 136 Ct. Cl. 283, 142 F. Supp. 897. Three Courts of Appeals decisions antedating Uptegrove Lumber Co. v. Commissioner, supra, provided support for the Government’s construction of § 275 (c). Foster’s Estate v. Commissioner, 131 F. 2d 405 (C. A. 5th Cir.); Ketcham v. Commissioner, 142 F. 2d 996 (C. A. 2d Cir.); O’Bryan v. Commissioner, 148 F. 2d 456 (C. A. 9th Cir.). But neither Foster’s Estate nor O’Bryan can be regarded as the controlling authority within their respective circuits in view of the more recent decisions in Davis v. Hightower, supra, and Slaff v. Commissioner, supra. Ketcham is distinguishable on its facts. The Sixth Circuit has consistently maintained its current position. The Tax Court has also regularly upheld the Commissioner. E. g., American Liberty Oil Co. v. Commissioner, 1 T. C. 386; Estate of Gibbs v. Commissioner, 21 T. C. 443. “SEC. 6501. LIMITATIONS ON ASSESSMENT AND COLLECTION. “(e) OmissioN From Gross Income. — Except as otherwise provided in subsection (c)— “(1) Income taxes. — In the case of any tax imposed by subtitle A— “ (A) General rule. — If the taxpayer omits from gross income an amount properly includible therein which is in excess of 25 percent of the amount of gross income stated in the return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within 6 years after the return was filed. For purposes of this subparagraph— “(i) In the case of a trade or business, the term “gross income” means the total of the amounts received or accrued from the sale of goods or services (if such amounts are required to be shown on the return) prior to diminution by the cost of such sales or services; and “(ii) In determining the amount omitted from gross income, there shall not be taken into account any amount which is omitted from gross income stated in the return if such amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the Secretary or his delegate of the nature and amount of such item.” 68A Stat. 803, 804-805.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL NO. 11, AFL-CIO, v. NATIONAL LABOR RELATIONS BOARD. No. 422. Argued March 28, 1957. Decided May 6, 1957. Joseph E. Finley argued the cause and filed a brief for petitioner. Dominick L. Manoli argued the cause for respondent. With him on the brief were Solicitor General Rankin, Stephen Leonard and Fannie M. Boyls. Samuel B. Bassett and Clifford D. O’Brien filed a brief for the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, et al., as amici curiae, urging affirmance. Mr. Justice Clark delivered the opinion of the Court. This case concerns the attempt of the petitioner, Local 11 of the Office Employes International Union, AFL-CIO, to represent for collective bargaining purposes the office-clerical workers employed at the Teamsters Building in Portland, Oregon. These office-clerical employees were engaged by the various local unions and affiliates of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL. Local 11 filed a series of unfair labor practice complaints with respondent, National Labor Relations Board, charging in substance that the Teamster group had interfered with the Local’s effort to organize the office-clerical workers in violation of § 8 (a) of the National Labor Relations Act. The primary question is whether with respect to their own employees labor organizations are “employers” within the meaning of § 2 (2) of the Act. Since we decide this question in the affirmative a subsidiary question is posed: Whether the Board may, by the application of general standards of classification, refuse to assert any jurisdiction over labor unions as a class when they act as employers. The Board here refused to assert any jurisdiction, and the complaints were dismissed. 113 N. L. R. B. 987. The Court of Appeals affirmed, 98 U. S. App. D. C. 335, 235 F. 2d 832. The importance of the jurisdictional questions involved caused us to grant certiorari in the interest of the proper administration of the Act. 352 U. S. 906. We believe the Board erred when it refused to take jurisdiction and thus, in effect, engrafted a blanket exemption upon the Act for all labor unions as employers. We shall not deal with the merits of the unfair labor practice complaints. As to the jurisdictional question, the findings indicate that there are 23 workers employed by the various Teamster organizations at the Teamsters Building. They are paid by the Teamster group which, excluding the Security Plan Office, forms “an integral part of a multistate enterprise.” The trial examiner concluded that the Teamster group came within the term “employer” under § 2 (2) of the Act. He further found that their operation was well within the monetary jurisdictional standards set by the Board in Jonesboro Grain Drying Cooperative, 110 N. L. R. B. 481 (1954). While the Board agreed with the examiner’s interpretation of § 2 (2) as to the term “employer,” it held, by a divided vote, that since the Teamster group was composed of unions, all engaged in a nonprofit business, the criteria applied to other nonprofit employers should govern. It further concluded “that labor organizations, which, when' engaged in their primary function of advancing employee welfare, are institutions unto themselves within the framework of this country’s economic scheme,” should not “be made subject to any of the standards originated for business organizations.” 113 N. L. R. B., at 991. h-I With regard to the jurisdiction of the Board the wording of § 2 (2) of the Act is clear and unambiguous. It says that the term “employer” includes any labor organization “when acting as an employer.” It follows that when a labor union takes on the role of an employer the Act applies to its operations just as it would to any other employer. The Board itself recognized this fact as early as 1951 in Air Line Pilots Association, 97 N. L. R. B. 929. There the Air Line Pilots Association was found to be an employer and the Board ordered that an election be held to determine the wishes of that union’s own employees in regard to the selection of appropriate employee bargaining units and a collective bargaining representative. Section 9 of the Act was therefore applied to the union as an employer. The legislative history of § 2 (2) unequivocally supports our conclusion. The Act, before its adoption in 1935, was considered by both the 73d and 74th Congresses. On each occasion the bill went into committee with labor unions excluded from the definition of an employer. Twice the Senate Committee to which it was referred amended it to include within the category of an employer labor unions when dealing with their own employees. The Committee inserted the words “other than when acting as an employer” after the exclusion of labor organizations from the definition of an employer. The Senate Committee on Education and Labor to which the bill was referred stated in explanation of this alteration: “The reason for stating that ‘employer’ excludes ‘any labor organization, other than when acting as an employer’ is this: In one sense every labor organization is an employer, it hires clerks, secretaries, and the like. In its relations with its own employees, a labor organization ought to be treated as an employer, and the bill so provides.” (Emphasis added.) S. Rep. No. 1184, 73d Cong., 2d Sess. 4. The bill which became the Act in 1935, S. 1958, 74th Cong., 1st Sess., contained the identical language set forth in italics in the above Senate Report. It is inescapable that the Board has jurisdiction. II. The question remains whether the Board may, nevertheless, refuse to assert jurisdiction over labor unions, as a class, when acting as employers. The Board in the face of the clear expression of the Congress to the contrary has exempted labor unions when acting as employers from the provisions of the Act. We believe that such an arbitrary blanket exclusion of union employers as a class is beyond the power of the Board. While it is true that “the Board sometimes properly declines to [assert jurisdiction] stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case” (emphasis supplied), Labor Board v. Denver Bldg. Council, 341 U. S. 675, 684 (1951), here the Board renounces jurisdiction over an entire category of employers, i. e., labor unions, a most important segment of American industrial life. It reasons that labor unions are nonprofit organizations. But until this case the Board has never recognized such a blanket rule of exclusion over all nonprofit employers. It has declined jurisdiction on an ad hoc basis over religious, educational, and eleemosynary employers such as a university library, a symphony orchestra, a research laboratory, and a church radio station. When the Act was amended in 1947 the Congress was aware of the Board’s general practice of excluding nonprofit organizations from the coverage of the Act when these organizations were engaged in noncommercial activities. The House of Representatives attempted to give these exclusions specific legislative approval. However, the Senate draft of the bill excluded only hospital employers from the Act’s coverage. The Senate version became a part of the Act and the language is the same as that involved here. The joint committee report on which the final enactment was based recited that the activities of nonprofit employers or their employees had been considered as coming within the Act only “in exceptional circumstances and in connection with purely commercial activities.” To place labor unions in this category is entirely unrealistic for the very nature of the excluded nonprofit employers is inherently different from that of labor unions and the reason for such exclusion has no applicability to union activity such as that found here. This is particularly true when we consider the pointed language of the Congress — repeated in Taft-Hartley in 1947 — that unions shall not be excluded when acting as employers. As the dissenting judge in the Court of Appeals points out, “§ 2 (2)’s strikingly particular reference to labor unions sharply differentiates them from non-profit organizations generally . . . .” 98 U. S. App. D. C., at 337, 235 F. 2d, at 834. We do not, therefore, believe that it was within the Board’s discretion to remove unions as employers from the coverage of the Act after Congress had specifically included them therein. It is true that the dollar volume jurisdictional standards adopted by the Board to govern its jurisdiction, Hollow Tree Lumber Co., 91 N. L. R. B. 635 (1950), exclude small employers whose business does not sufficiently affect commerce. But its exercise of discretion in the local field does not give the Board the power to decline jurisdiction over all employers in other fields. To do so would but grant to the Board the congressional power of repeal. See also Guss v. Utah Labor Relations Board, 353 U. S. 1, 4 (1957), where the Court refused to pass “upon the validity of any particular declination of jurisdiction by the Board or any set of jurisdictional standards.” We therefore conclude that the Board’s declination of jurisdiction was contrary to the intent of Congress, was arbitrary, and was beyond its power. The judgment is therefore reversed and the case is remanded to the Court of Appeals for remand to the Board for further proceedings in accordance with this opinion. It is so ordered. The complaints were leveled at the International Brotherhood of Teamsters and its representative, Teamster Local No. 206, Teamster Local No. 223, the Teamsters’ Joint Council of Drivers No. 37, the Oregon Teamsters’ Security Plan Office and its administrator, and the Teamsters Building Association, Inc. The latter owns and operates an office building in Portland, Oregon. The office-clerical employees petitioner attempted to organize perform services for the various teamster organizations here involved. These organizations are the exclusive tenants of the building. 61 Stat. 140, 29 U. S. C. § 158 (a). 61 Stat. 137, 29 U. S. C.-§ 152 (2), provides in pertinent part: “Sec. 2. When used in this Act— “(2) The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.” (Emphasis supplied.) The annual payment of initiation fees and taxes from members of the Teamsters Union throughout the country to the International’s headquarters in Washington, D. C., amounts to more than $6,000,000. The minimum monetary jurisdictional requirement for a multistate enterprise such as the Teamsters, promulgated by the Board in Jonesboro Grain Drying Corp., 110 N. L. R. B. 481 (1954), is $250,000. The Security Plan Office administers 18 trust funds and receives contributions provided for by collective bargaining agreements with some 2,000 employers located in four western States. Some of the funds are invested in health and welfare insurance policies on which over $2,000,000 per annum in premiums is paid to a California insurance carrier. The minimum “direct outflow” requirement established for jurisdictional purposes in Jonesboro, supra, is $50,000. The California insurance carrier remits 4% of the premiums to the Security Plan Office to defray the expense of maintaining an office and processing and paying claims under the health and welfare plan. The Security Plan Office employed and paid at various times from five to ten of the personnel at the Teamsters Building. The Teamsters Building Association, Inc., is, as are the other Teamsters, a nonprofit corporation. Its stock is held by six Teamster locals including Local 206, one of the defendants charged with unfair labor practices in the complaint before the Board. The Association’s sole function is the ownership and maintenance of the office building in Portland which is occupied by the various Teamster organizations. We treat the opinion of the Board, as did the Court of Appeals, as being that of members Farmer and Peterson. While Mr. Mur-dock’s concurrence was on the "more limited grounds” that Congress never intended labor unions to be employers with respect to their own employees when engaged in union activities, he concurred in the dismissal by Messrs. Farmer and Peterson. The other two members dissented. 61 Stat. 143, 29 U. S. C. § 159. S. 2926, 73d Cong., 2d Sess.; S. 1958, 74th Cong., 1st Sess. “ (2) The term ‘employer’ . . . shall not include . . . any labor organization . . . .” S. 2926, 73d Cong., 2d Sess. 3. This bill, while receiving committee approval as altered, was not enacted. When Senator Wagner resubmitted the bill the next year he did so in its original form. Trustees of Columbia University, 97 N. L. R. B. 424 (1951) (library); Philadelphia Orchestra Association, 97 N. L. R. B. 548 (1951) (orchestra); Armour Research Foundation, 107 N. L. R. B. 1052 (1954) (laboratory); and Lutheran Church, Missouri Synod, 109 N. L. R. B. 859 (1954) (radio station). H. R. Rep. No. 510, 80th Cong., 1st Sess. 32. H. R. 3020, 80th Cong., 1st Sess. 4. The exclusions would have included “any corporation, community chest, fund, or foundation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals.” See note 10, supra. See also Hotel Association of St. Louis, 92 N. L. R. B. 1388 (1951), where the Board declined jurisdiction over hotel employers. The Board’s refusal was based on the local character of the hotel business. The District Court for the District of Columbia has held that such refusal is not arbitrary in Hotel Employees Local No. 255 v. Leedom, 147 F. Supp. 306 (1957). In Checker Cab Co., 110 N. L. R. B. 683 (1954), the Board declined jurisdiction of an action involving a purely local employer operating two taxicab companies in Baton Rouge, Louisiana. See also Yellow Cab Company of California, 90 N. L. R. B. 1884 (1950); Skyview Transportation Co., 90 N. L. R. B. 1895 (1950); and Brooklyn Cab Corp., 90 N. L. R. B. 1898 (1950). In these cases the declination of jurisdiction was based on the local character of the operations. We indicate neither approval nor disapproval of these jurisdictional declinations.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 81 ]	sc_adminaction
Nidal Khalid NASRALLAH, Petitioner v. William P. BARR, Attorney General No. 18-1432 Supreme Court of the United States. Argued March 2, 2020 Decided June 1, 2020 Eugene R. Fidell, Yale Law School, Supreme Court Clinic, New Haven, CT, Andrew J. Pincus, Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, Brian Wolfman, Washington, DC, Paul W. Hughes, Michael B. Kimberly, Andrew A. Lyons-Berg, McDermott Will & Emery LLP, Washington, DC, Helen L. Parsonage, Elliot Morgan, Parsonage PLLC, Winston-Salem, NC, for petitioner. Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Matthew Guarnieri, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, D.C., for the respondent. Justice KAVANAUGH delivered the opinion of the Court. Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen may raise claims under the international Convention Against Torture, known as CAT. If the noncitizen demonstrates that he likely would be tortured if removed to the designated country of removal, then he is entitled to CAT relief and may not be removed to that country (although he still may be removed to other countries). If the immigration judge orders removal and denies CAT relief, the noncitizen may appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals orders removal and denies CAT relief, the noncitizen may obtain judicial review in a federal court of appeals of both the final order of removal and the CAT order. In the court of appeals, for cases involving noncitizens who have committed any crime specified in 8 U.S.C. § 1252(a)(2)(C), federal law limits the scope of judicial review. Those noncitizens may obtain judicial review of constitutional and legal challenges to the final order of removal, but not of factual challenges to the final order of removal. Everyone agrees on all of the above. The dispute here concerns the scope of judicial review of CAT orders for those noncitizens who have committed crimes specified in § 1252(a)(2)(C). The Government argues that judicial review of a CAT order is analogous to judicial review of a final order of removal. The Government contends, in other words, that the court of appeals may review the noncitizen's constitutional and legal challenges to a CAT order, but not the noncitizen's factual challenges to the CAT order. Nasrallah responds that the court of appeals may review the noncitizen's constitutional, legal, and factual challenges to the CAT order, although Nasrallah acknowledges that judicial review of factual challenges to CAT orders must be highly deferential. So the narrow question before the Court is whether, in a case involving a noncitizen who committed a crime specified in § 1252(a)(2)(C), the court of appeals should review the noncitizen's factual challenges to the CAT order (i) not at all or (ii) deferentially. Based on the text of the statute, we conclude that the court of appeals should review factual challenges to the CAT order deferentially. We therefore reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit. I Nidal Khalid Nasrallah is a native and citizen of Lebanon. In 2006, when he was 17 years old, Nasrallah came to the United States on a tourist visa. In 2007, he became a lawful permanent resident. In 2013, Nasrallah pled guilty to two counts of receiving stolen property. The U. S. District Court for the Western District of North Carolina sentenced Nasrallah to 364 days in prison. Based on Nasrallah's conviction, the Government initiated deportation proceedings. See 8 U.S.C. § 1227(a)(2)(A)(i). In those proceedings, Nasrallah applied for CAT relief to prevent his removal to Lebanon. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U. N. T. S. 114. Nasrallah alleged that he was a member of the Druze religion, and that he had been tortured by Hezbollah before he came to the United States. Nasrallah argued that he would be tortured again if returned to Lebanon. The Immigration Judge determined that Nasrallah was removable. As to the CAT claim, the Immigration Judge found that Nasrallah had previously suffered torture at the hands of Hezbollah. Based on Nasrallah's past experience and the current political conditions in Lebanon, the Immigration Judge concluded that Nasrallah likely would be tortured again if returned to Lebanon. The Immigration Judge ordered Nasrallah removed, but also granted CAT relief and thereby blocked Nasrallah's removal to Lebanon. On appeal, the Board of Immigration Appeals disagreed that Nasrallah likely would be tortured in Lebanon. The Board therefore vacated the order granting CAT relief and ordered Nasrallah removed to Lebanon. Nasrallah filed a petition for review in the U. S. Court of Appeals for the Eleventh Circuit, claiming (among other things) that the Board of Immigration Appeals erred in finding that he would not likely be tortured in Lebanon. Nasrallah raised factual challenges to the Board's CAT order. Applying Circuit precedent, the Eleventh Circuit declined to review Nasrallah's factual challenges. Nasrallah v. United States Attorney General, 762 Fed.Appx. 638 (2019). The court explained that Nasrallah had been convicted of a crime specified in 8 U.S.C. § 1252(a)(2)(C). Noncitizens convicted of § 1252(a)(2)(C) crimes may not obtain judicial review of factual challenges to a "final order of removal." §§ 1252(a)(2)(C)-(D). Under Eleventh Circuit precedent, that statute also precludes judicial review of factual challenges to the CAT order. Nasrallah contends that the Eleventh Circuit should have reviewed his factual challenges to the CAT order because the statute bars review only of factual challenges to a "final order of removal." According to Nasrallah, a CAT order is not a "final order of removal" and does not affect the validity of a final order of removal. Therefore, Nasrallah argues, the statute by its terms does not bar judicial review of factual challenges to a CAT order. The Courts of Appeals are divided over whether §§ 1252(a)(2)(C) and (D) preclude judicial review of factual challenges to a CAT order. Most Courts of Appeals have sided with the Government; the Seventh and Ninth Circuits have gone the other way. Compare Gourdet v. Holder, 587 F.3d 1, 5 (CA1 2009) ; Ortiz-Franco v. Holder, 782 F.3d 81, 88 (CA2 2015) ; Pieschacon-Villegas v. Attorney General of U. S., 671 F.3d 303, 309-310 (CA3 2011) ; Oxygene v. Lynch, 813 F.3d 541, 545 (CA4 2016) ; Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (CA5 2012) ; Tran v. Gonzales, 447 F.3d 937, 943 (CA6 2006) ; Lovan v. Holder, 574 F.3d 990, 998 (CA8 2009) ; Cole v. United States Attorney General, 712 F.3d 517, 532 (CA11 2013), with Wanjiru v. Holder, 705 F.3d 258, 264 (CA7 2013) ; Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1029 (CA9 2014). In light of the Circuit split on this important question of federal law, we granted certiorari. 589 U. S. ----, 140 S.Ct. 428, 205 L.Ed.2d 244 (2019). II When a noncitizen is removable because he committed a crime specified in § 1252(a)(2)(C), immigration law bars judicial review of the noncitizen's factual challenges to his final order of removal. In the Government's view, the law also bars judicial review of the noncitizen's factual challenges to a CAT order. Nasrallah disagrees. We conclude that Nasrallah has the better of the statutory argument. A We begin by describing the three interlocking statutes that provide for judicial review of final orders of removal and CAT orders. The first relevant statute is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That Act authorizes noncitizens to obtain direct "review of a final order of removal" in a court of appeals. 110 Stat. 3009-607, 8 U.S.C. § 1252(a)(1). As the parties agree, in the deportation context, a "final order of removal" is a final order "concluding that the alien is deportable or ordering deportation." § 1101(a)(47)(A) ; see § 309(d)(2), 110 Stat. 3009-627; Calcano-Martinez v. INS, 533 U.S. 348, 350, n. 1, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). The Act also states that judicial review "of all questions of law and fact... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9) ; see 110 Stat. 3009-610. In other words, a noncitizen's various challenges arising from the removal proceeding must be "consolidated in a petition for review and considered by the courts of appeals." INS v. St. Cyr, 533 U.S. 289, 313, and n. 37, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). By consolidating the issues arising from a final order of removal, eliminating review in the district courts, and supplying direct review in the courts of appeals, the Act expedites judicial review of final orders of removal. The second relevant statute is the Foreign Affairs Reform and Restructuring Act of 1998, known as FARRA. FARRA implements Article 3 of the international Convention Against Torture, known as CAT. As relevant here, CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. Importantly for present purposes, § 2242(d) of FARRA provides for judicial review of CAT claims "as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act ( 8 U.S.C. 1252 )." 112 Stat. 2681-822, note following 8 U.S.C. § 1231. The third relevant statute is the REAL ID Act of 2005. As relevant here, that Act responded to this Court's 2001 decision in St. Cyr. In St. Cyr, this Court ruled that the 1996 Act, although purporting to eliminate district court review of final orders of removal, did not eliminate district court review via habeas corpus of constitutional or legal challenges to final orders of removal. 533 U.S. at 312-313, 121 S.Ct. 2271. The REAL ID Act clarified that final orders of removal may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U.S.C. § 1252(a)(5). The REAL ID Act also provided that CAT orders likewise may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U.S.C. § 1252(a)(4). B Those three Acts establish that CAT orders may be reviewed together with final orders of removal in a court of appeals. But judicial review of final orders of removal is somewhat limited in cases (such as Nasrallah's) involving noncitizens convicted of crimes specified in § 1252(a)(2)(C). In those cases, a court of appeals may review constitutional or legal challenges to a final order of removal, but the court of appeals may not review factual challenges to a final order of removal. §§ 1252(a)(2)(C)-(D) ; see Guerrero-Lasprilla v. Barr, 589 U. S. ----, ---- - ----, 140 S.Ct. 1062, 1072-1073, 206 L.Ed.2d 271 (2020). The question in this case is the following: By precluding judicial review of factual challenges to final orders of removal, does the law also preclude judicial review of factual challenges to CAT orders? We conclude that it does not. The relevant statutory text precludes judicial review of factual challenges to final orders of removal-and only to final orders of removal. In the deportation context, a final "order of removal" is a final order "concluding that the alien is deportable or ordering deportation." § 1101(a)(47)(A). A CAT order is not itself a final order of removal because it is not an order "concluding that the alien is deportable or ordering deportation." As the Government acknowledges, a CAT order does not disturb the final order of removal. Brief for Respondent 26. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still "may be removed at any time to another country where he or she is not likely to be tortured." 8 C.F.R. §§ 1208.17(b)(2), 1208.16(f). Even though CAT orders are not the same as final orders of removal, a question remains: Do CAT orders merge into final orders of removal in the same way as, say, an immigration judge's evidentiary rulings merge into final orders of removal? The answer is no. For purposes of this statute, final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal. As this Court phrased it in INS v. Chadha, review of a final order of removal "includes all matters on which the validity of the final order is contingent." 462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (internal quotation marks omitted). The rulings that affect the validity of the final order of removal merge into the final order of removal for purposes of judicial review. But the immigration judge's or the Board's ruling on a CAT claim does not affect the validity of the final order of removal and therefore does not merge into the final order of removal. To be sure, as noted above, FARRA provides that a CAT order is reviewable "as part of the review of a final order of removal" under 8 U.S.C. § 1252. § 2242(d), 112 Stat. 2681-822; see also 8 U.S.C. § 1252(a)(4). Likewise, § 1252(b)(9) provides that "[j]udicial review of all questions of law and fact... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." § 1252(b)(9). But FARRA and § 1252(b)(9) simply establish that a CAT order may be reviewed together with the final order of removal, not that a CAT order is the same as, or affects the validity of, a final order of removal. Consider an analogy. Suppose a statute furnishes appellate review of convictions and sentences in a single appellate proceeding. Suppose that the statute also precludes appellate review of certain factual challenges to the sentence. Would that statute bar appellate review of factual challenges to the conviction, just because the conviction and sentence are reviewed together? No. The same is true here. A CAT order may be reviewed together with the final order of removal. But a CAT order is distinct from a final order of removal and does not affect the validity of the final order of removal. The CAT order therefore does not merge into the final order of removal for purposes of §§ 1252(a)(2)(C)-(D)'s limitation on the scope of judicial review. In short, as a matter of straightforward statutory interpretation, Congress's decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of factual challenges to CAT orders. It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President. C Although a noncitizen may obtain judicial review of factual challenges to CAT orders, that review is highly deferential, as Nasrallah acknowledges. See Reply Brief 19-20; Tr. of Oral Arg. 5. The standard of review is the substantial-evidence standard: The agency's "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." § 1252(b)(4)(B) ; see Kenyeres v. Ashcroft, 538 U.S. 1301, 1306, 123 S.Ct. 1386, 155 L.Ed.2d 301 (2003) (Kennedy, J., in chambers); INS v. Elias-Zacarias, 502 U.S. 478, 481, n. 1, 483-484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). But the Government still insists that the statute supplies no judicial review of factual challenges to CAT orders. The Government advances a slew of arguments, but none persuades us. First, the Government raises an argument based on precedent. In Foti v. INS, 375 U. S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), this Court interpreted the statutory term "final orders of deportation" in the Immigration and Nationality Act of 1952, as amended in 1961, to encompass "all determinations made during and incident to the administrative proceeding" on removability. Id., at 229, 84 S.Ct. 306. The Government points out (correctly) that the Foti definition of a final order-if it still applied here-would cover CAT orders and therefore would bar judicial review of factual challenges to CAT orders. But Foti's interpretation of the INA as it existed as of 1963 no longer applies. Since 1996, the INA has defined final "order of deportation" more narrowly than this Court interpreted the term in Foti. A final order of deportation is now defined as a final order "concluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A) ; Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1277; see § 309(d)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-627. And as we have explained, an order denying CAT relief does not fall within the statutory definition of an "order of deportation" because it is not an order "concluding that the alien is deportable or ordering deportation." Therefore, Foti does not control here. Second, the Government puts forward a structural argument. As the Government sees it, if a CAT order is not merged into a final order of removal, then no statute would authorize a court of appeals to review a CAT order in the first place. That is because, in the Government's view, the only statute that supplies judicial review of CAT claims is the statute that provides for judicial review of final orders of removal. See § 1252(a)(1). The premise of that argument is incorrect. Section 2242(d) of FARRA, enacted in 1998, expressly provides for judicial review of CAT claims together with the review of final orders of removal. Moreover, as a result of the 2005 REAL ID Act, § 1252(a)(4) now provides for direct review of CAT orders in the courts of appeals. See also 8 U.S.C. § 1252(b)(9). In short, our decision does not affect the authority of the courts of appeals to review CAT orders. Third, the Government asserts a congressional intent argument: Why would Congress bar review of factual challenges to a removal order, but allow factual challenges to a CAT order? To begin with, we must adhere to the statutory text, which differentiates between the two kinds of orders for those purposes. In any event, Congress had good reason to distinguish the two. For noncitizens who have committed crimes that subject them to removal, the facts that rendered the noncitizen removable are often not in serious dispute. The relevant facts will usually just be the existence of the noncitizen's prior criminal convictions. By barring review of factual challenges to final orders of removal, Congress prevented further relitigation of the underlying factual bases for those criminal convictions-a point that Senator Abraham, a key proponent of the statutory bar to judicial review, stressed back in 1996. See 142 Cong. Rec. 7348-7350 (1996). By contrast, the issues related to a CAT order will not typically have been litigated prior to the alien's removal proceedings. Those factual issues may range from the noncitizen's past experiences in the designated country of removal, to the noncitizen's credibility, to the political or other current conditions in that country. Because the factual components of CAT orders will not previously have been litigated in court and because those factual issues may be critical to determining whether the noncitizen is likely to be tortured if returned, it makes some sense that Congress would provide an opportunity for judicial review, albeit deferential judicial review, of the factual components of a CAT order. Fourth, the Government advances a policy argument-that judicial review of the factual components of a CAT order would unduly delay removal proceedings. But today's decision does not affect whether the noncitizen is entitled to judicial review of a CAT order and does not add a new layer of judicial review. All agree that a noncitizen facing removal under these provisions may already seek judicial review in a court of appeals of constitutional and legal claims relating to both the final order of removal and the CAT order. Our holding today means only that, in that same case in the court of appeals, the court may also review the noncitizen's factual challenges to the CAT order under the deferential substantial-evidence standard. For many years, the Seventh and Ninth Circuits have allowed factual challenges to CAT orders, and the Government has not informed this Court of any significant problems stemming from review in those Circuits. Fifth, what about the slippery slope? If factual challenges to CAT orders may be reviewed, what other orders will now be subject to factual challenges in the courts of appeals? Importantly, another jurisdiction-stripping provision, § 1252(a)(2)(B), states that a noncitizen may not bring a factual challenge to orders denying discretionary relief, including cancellation of removal, voluntary departure, adjustment of status, certain inadmissibility waivers, and other determinations "made discretionary by statute." Kucana v. Holder, 558 U.S. 233, 248, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Our decision today therefore has no effect on judicial review of those discretionary determinations. The Government suggests that our decision here might lead to judicial review of factual challenges to statutory withholding orders. A statutory withholding order prevents the removal of a noncitizen to a country where the noncitizen's "life or freedom would be threatened" because of the noncitizen's "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). That question is not presented in this case, and we therefore leave its resolution for another day. * * * In cases where a noncitizen has committed a crime specified in 8 U.S.C. § 1252(a)(2)(C), §§ 1252(a)(2)(C) and (D) preclude judicial review of the noncitizen's factual challenges to a final order of removal. A CAT order is distinct from a final order of removal and does not affect the validity of a final order of removal. Therefore, §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen's factual challenges to a CAT order. We reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit. It is so ordered. Justice THOMAS, with whom Justice ALITO joins, dissenting. The majority holds that the federal courts of appeals have jurisdiction to review factual challenges to orders resolving claims brought under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Because I disagree with this interpretation of the relevant immigration laws, I respectfully dissent. I The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or Convention) is an international human rights treaty that, as its name implies, obligates signatories to work to eradicate torture. The Convention was sent to the Senate for its advice and consent in 1990. Although the Senate ultimately ratified the treaty, it also determined that the first 16 articles of the Convention were not self-executing. See S. Exec. Rep. No. 101-30, p. 31 (1990). As such, those articles required implementing legislation before their obligations could become effective as domestic law. See Medellín v. Texas, 552 U.S. 491, 505, n. 2, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). After the treaty was ratified, Congress enacted legislation implementing Article III of the Convention by means of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). See § 2242, 112 Stat. 2681-822, note following 8 U.S.C. § 1231. Article III of the Convention prohibits its signatories from "expel[ling], return[ing] or extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." S. Treaty Doc. No. 100-20, p. 20, 1465 U. N. T. S. 114. Rather than providing detailed guidance on the United States' Article III obligations, FARRA merely restated the treaty's language and perfunctorily declared that "the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3." § 2242(b). Congress also provided that no court would have "jurisdiction to consider or review claims raised under the Convention... except as part of the review of a final order of removal pursuant to... ( 8 U.S.C. § 1252 )." § 2242(d). Section 1252, in turn, grants federal courts of appeals jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). It also specifies that "the sole and exclusive means for judicial review of an order of removal" is through "a petition for review filed... in accordance with this section." § 1252(a)(5). Section 1252 also contains a "zipper clause," which states that "all questions of law or fact... arising from any action taken or proceeding brought to remove an alien" shall be consolidated and "available only in judicial review of a final order under this section." § 1252(b)(9). At the same time, petitions for review are subject to a number of limitations, one of which is in § 1252(a)(2)(C). That provision-often referred to as the "criminal-alien bar"-states that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" certain criminal offenses. II A This case concerns whether CAT claims brought during a criminal alien's removal proceeding are covered by the criminal-alien bar in § 1252(a)(2)(C). The most important provision for determining whether these CAT orders are subject to § 1252(a)(2)(C) is the zipper clause. If orders deeming a criminal alien ineligible for CAT relief fall within that clause, then the bar in § 1252(a)(2)(C) prevents review; if they do not, then the courts have jurisdiction to review factual challenges related to these orders. I would conclude that CAT orders fall within the zipper clause. The zipper clause states that "all questions of law and fact... arising from any action taken or proceeding brought to remove an alien... shall be available only in judicial review of a final order under this section." § 1252(b)(9) (emphasis added). To "arise" means "to originate from a specified source" or "to come into being." Webster's Third New International Dictionary 117 (1976). And "from" most naturally refers here to the "ground, reason, or basis" for something. Id., at 913. Thus, § 1252(b)(9) covers all "questions of law and fact" that an immigration judge must decide as a result of the Government's decision to initiate removal proceedings against an alien. See also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (stating that the zipper clause applies to the "many... decisions or actions that may be part of the [removal] process"). The plain text clearly covers CAT claims such as the one petitioner raised. The Government initiated removal	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 6 ]	sc_adminaction
UNITED STATES v. MOORMAN et al., doing business as J. W. MOORMAN & SON. No. 97. Argued December 6, 1949. Decided January 9, 1950. Morton Liftin argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney. V. J. Bodovitz argued the cause for respondents. With him on the brief was F. A. Bodovitz. Mr. Justice Black delivered the opinion of the Court. The questions presented relate to the interpretation and validity of terms in a government construction contract providing that in contractual disputes the decisions of the Secretary of War or his authorized representative shall be final and binding. The respondent partnership entered into a standard form contract with the United States to grade the site of a proposed aircraft assembly plant. Article 1 of the contract provided for payment of 24 cents per cubic yard of grading, satisfactorily completed “in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof . . . .” A proposed taxiway was shown on the drawings but was not located within the plant site as described in the specifications. The present controversy concerns the question of whether the contract required respondent to grade this taxiway. On demand of the Government, respondent graded for the taxiway at the point shown on the drawings. It then filed a claim with the contracting officer asking extra compensation, 84 cents per cubic yard instead of the 24 cents specified in the contract. Upon investigation the contracting officer made findings of fact which led him to reject respondent’s claim. Appeal was taken to the Secretary of War, whose authorized representative also considered the facts and denied the claim. According to Par. 2-16 (a) of the specifications, such a denial is “final and binding upon the parties” when a contractor claims as here that work demanded is “outside the requirements of the contract.” Notwithstanding the foregoing provision that the Secretary of War’s decision is final and binding, respondent brought this action in the Court of Claims to recover the extra compensation. He there contended that his right to challenge such administrative findings was measured by Art. 15 of the contract, not by Par. 2-16 of the specifications. Article 15 makes a department head’s decision “final and conclusive upon the parties” only when such disputes are over “questions of fact.” Respondent, alleging that the dispute here was over the proper “interpretation” of the contract, argues that how a contract shall be interpreted is not a “question of fact” but a “question of law.” Adding this premise to his assumption that Art. 15 alone governed finality of this administrative decision, respondent contended that the Court of Claims could reconsider the facts, make new findings as a basis for its “interpretation,” and then overturn the administrative decision. The Court of Claims did all three. On the basis of its new findings and “interpretation,” the court entered a money judgment for respondent computed at 59.3 cents per cubic yard for the taxiway grading. 113 Ct. Cl. 159, 82 F. Supp. 1010. In petitioning for certiorari the Solicitor General represented that this decision plus previous ones of the Court of Claims had “weakened and narrowed the effectiveness of the well-established policy of the Government to settle, without expensive litigation, disputes arising under its contracts”; and that the total effect of the decisions was to “add further doubt and confusion to the authority of designated officers of the United States to make final decisions under government contracts.” We granted certiorari. 338 U. S. 810. First. Contractual provisions such as these have long been used by the Government. No congressional enactment condemns their creation or enforcement. As early as 1878 this Court emphatically authorized enforcement of contractual provisions vesting final power in a District Quartermaster to fix distances, not clearly defined in the contract, on which payment for transportation was based. Kihlberg v. United States, 97 U. S. 398. Five years later Sweeney v. United States, 109 U. S. 618, upheld a government contract providing that payment for construction of a wall should not be made until an Army officer or other agent designated by the United States had certified after inspection that “it was in all respects as contracted for.” And in Martinsburg & Potomac R. Co. v. March, 114 U. S. 549, this Court enforced a contract for railroad grading which broadly provided that the railroad’s chief engineer should in all cases “determine the quantity of the several kinds of work to be paid for under the contract, . . . decide every question which can or may arise relative to the execution of the contract, and ‘his estimate shall be final and conclusive.’ ” Id. at pp. 551-552. In upholding the conclusions of the engineer the Court emphasized the duty of trial courts to recognize the right of parties to make and rely on such mutual agreements. Findings of such a contractually designated agent, even where employed by one of the parties, were held “conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith.” Id. at p. 555. The holdings of the foregoing cases have never been departed from by this Court. They stand for the principle that parties competent to make contracts are also competent to make such agreements. The Court of Claims departed from this established principle in McShain v. United States, 88 Ct. Cl. 284, where it refused to recognize as final the decision of a contracting officer, even though the Government and contractor had agreed that his decision should be final. The Court of Claims’ holding was based on its conclusion that the contracting officer’s decision had been reached by “interpretation of the contract, drawing, and specifications,” and that parties were incompetent to make such decisions binding except as to questions of fact. Its holding was considered such a departure from established contract law that this Court summarily reversed in a per curiam opinion citing only two of the many prior cases on the subject. One of the cited cases had enforced a contract provision that “the decision of the Supervising Architect as to the proper interpretation of the drawings and specifications shall be final.” Merrill-Ruckgaber Co. v. United States, 241 U. S. 387, 393. Similar agreements have been held enforceable in almost every state. See cases collected in Note, 54 A. L. R. 1255 et seq. In one state, Indiana, the courts do seem to hold differently, on the ground that permitting engineers or other persons to make final determinations of contractual disputes would wrongfully deprive the parties of a right to have their controversies decided in courts. See cases collected in Note, 54 A. L. R. 1270-1271. In the McShain case we rejected a contention that this Court should adopt a rule like Indiana’s and we reject it now. It is true that the intention of parties to submit their contractual disputes to final determination outside the courts should be made manifest by plain language. Mercantile Trust Co. v. Hensey, 205 U. S. 298, 309. But this does not mean that hostility to such provisions can justify blindness to a plain intent of parties to adopt this method for settlement of their disputes. Nor should such an agreement of parties be frustrated by judicial “interpretation” of contracts. If parties competent to decide for themselves are to be deprived of the privilege of making such anticipatory provisions for settlement of disputes, this deprivation should come from the legislative branch of government. Second. We turn to the contract to determine whether the parties did show an intent to authorize final determinations by the Secretary of War or his representatives in this type of controversy. If the determination here is considered one of fact, Art. 15 of the contract clearly makes it binding. But while there is much to be said for the argument that the “interpretation” here presents a question of fact, we need not consider that argument. For a conclusion that the question here is one of law cannot remove the controversy from the ambit of Par. 2-16 of the specifications. That section expressly covers all claims by a contractor who, like respondent here, “considers any work demanded of him to be outside the requirements of the contract . . . .” The parties incorporated it into the specifications and made the specifications part of the contract, all of which they had a legal right to do. The section is neither in conflict with nor limited by Art. 15, for the latter expressly excepts from its coverage such special methods of settlement “otherwise specifically provided in this contract.” The oft-repeated conclusion of the Court of Claims that questions of “interpretation” are not questions of fact is ample reason why the parties to the contract should provide for final determination of such disputes by a method wholly separate from the fact-limited provisions of Art. 15. To hold that the parties did not so “intend” would be a distortion of the interpretative process. The language of Par. 2-16 is clear. No ambiguities can be injected into it by supportable reasoning. It states in language as plain as draftsmen could use that findings of the Secretary of War in disputes of the type here involved shall be “final and binding.” In reconsidering the questions decided by the designated agent of the parties, the Court of Claims was in error. Its judgment cannot stand. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. “If the contractor considers any work demanded of him to be outside the requirements of the contract or if he considers any action or ruling of the contracting officer or of the inspectors to be unfair, the contractor shall without undue delay, upon such demand, action, or ruling, submit his protest thereto in writing to the contracting officer, stating clearly and in detail the basis of his objections. The contracting officer shall thereupon promptly investigate the complaint and furnish the contractor his decision, in writing, thereon. If the contractor is not satisfied with the decision of the contracting officer, he may, within thirty days, appeal in writing to the Secretary of War, whose decision or that of his duly authorized representative shall be final and binding upon the parties to the contract. . . .” Paragraph 2-16 of the specifications. “Disputes. — Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” Article 15 of the contract. These and other representations in the petition for certiorari in this case are substantially identical with representations made by the Solicitor General in asking this Court to review a former Court of Claims judgment reported in 88 Ct. Cl. 284. The case there, it was urged, seemed to be the “culmination of a recent tendency in the Court of Claims to whittle away the authority of designated officers of the United States to make final decisions under contracts.” It was insisted that “At least, we submit, the power of the Government to make effective contracts of this character should not be so circumscribed except by decision of this Court.” We granted that petition and reversed the judgment without oral argument in a per curiam opinion. United States v. McShain, 308 U. S. 512. United States v. McShain, 308 U. S. 512.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 23 ]	sc_adminaction
UNITED STATES v. THIRTY-SEVEN (37) PHOTOGRAPHS (LUROS, CLAIMANT) No. 133. Argued January 20, 1971 Decided May 3, 1971 White, J., announced the Court’s judgment and delivered an opinion in which (as to Part I) Burger, C. J., and Harlan, Brennan, Stewart, and Blackmun, JJ., joined, and in which (as to Part II), Burger, C. J., and Brennan and Blackmun, JJ., joined. Harlan, J., post, p. 377, and Stewart, J., post, p. 378, filed opinions concurring in the judgment and concurring in Part I of White, J.’s opinion. Black, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 379. Marshall, J., filed a dissenting opinion, ante, p. 360. Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson and Roger A. Pauley. Stanley Fleishman argued the cause for appellees. With him on the brief was Sam Rosenwein. Mr. Justice White announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Brennan, and Mr. Justice Blackmun join. When Milton Luros returned to the United States from Europe on October 24, 1969, he brought with him in his luggage the 37 photographs here involved. United States customs agents, acting pursuant to § 305 of the Tariff Act of 1930, as amended, 46 Stat. 688, 19 U. S. C. § 1305 (a), seized the photographs as obscene. They referred the matter to the United States Attorney, who on November 6 instituted proceedings in the United States District Court for forfeiture of the material. Luros, as claimant, answered, denying the photographs were obscene and setting up a counterclaim alleging the unconstitutionality of § 1305 (a) on its face and as applied to him. He demanded that a three-judge court be convened to issue an injunction prayed for in the counterclaim. The parties stipulated a time for hearing the three-judge court motion. A formal order convening the court was entered on November 20. The parties then stipulated a briefing schedule expiring on December 16. The court ordered a hearing for January 9, 1970, also suggesting the parties stipulate facts, which they did. The stipulation revealed, among other things, that some or all of the 37 photographs were intended to be incorporated in a hard cover edition of The Kama Sutra of Yatsyayana, a widely distributed book candidly describing a large number of sexual positions. Hearing was held as scheduled on January 9, and on January 27 the three-judge court filed its judgment and opinion declaring § 1305 (a) unconstitutional and enjoining its enforcement against the 37 photographs, which were ordered returned to Luros. 309 F. Supp. 36 (CD Cal. 1970). The judgment of invalidity rested on two grounds: first, that the section failed to comply with the procedural requirements of Freedman v. Maryland, 380 U. S. 51 (1965), and second, that under Stanley v. Georgia, 394 U. S. 557 (1969), § 1305 (a) could not validly be applied to the seized material. We shall deal with each of these grounds separately. I In Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding “that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 380 U. S., at 58. To insure that a judicial determination occurs promptly so that administrative delay does not in itself become a form of censorship, we further held, (1) there must be assurance, “by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film”; (2) “[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution”; and (3) “the procedure must also assure a prompt final judicial decision” to minimize the impact of possibly erroneous administrative action. Id., at 58-59. Subsequently, we invalidated Chicago’s motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure “a prompt judicial decision of the question of the alleged obscenity of the film.” Teitel Film Corp. v. Cusack, 390 U. S. 139, 141 (1968). So, too, in Blount v. Rizzi, 400 U. S. 410 (1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain pending completion of administrative action, was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial administration. As enacted by Congress, § 1305 (a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount. These cases do not, however, require that we pass upon the constitutionality of § 1305 (a), for it is possible to construe the section to bring it in harmony with constitutional requirements. It is true that we noted in Blount that “it is for Congress, not this Court, to rewrite the statute,” 400 U. S., at 419, and that we similarly refused to rewrite Maryland’s statute and Chicago’s ordinance in Freedman and Teitel. On the other hand, we must remember that, “[w]hen the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). Accord, e. g., Haynes v. United States, 390 U. S. 85, 92 (1968) (dictum); Schneider v. Smith, 390 U. S. 17, 27 (1968); United States v. Rumely, 345 U. S. 41, 45 (1953); Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring). This cardinal principle did not govern Freedman, Teitel, and Blount only because the statutes there involved could not be construed so as to avoid all constitutional difficulties. The obstacle in Freedman and Teitel was that the statutes were enacted pursuant to state rather than federal authority; while Freedman recognized that a statute failing to specify time limits could be saved by judicial construction, it held that such construction had to be “authoritative,” 380 U. S., at 59, and we lack jurisdiction authoritatively to construe state legislation. Cf. General Trading Co. v. State Tax Comm’n, 322 U. S. 335, 337 (1944). In Blount, we were dealing with a federal statute and thus had power to give it an authoritative construction; salvation of that statute, however, would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors. For the statute at issue in Blount not only failed to specify time limits within which judicial proceedings must be instituted and completed; it also failed to give any authorization at all to the administrative agency, upon a determination that material was obscene, to seek judicial review. To have saved the statute we would thus have been required to give such authorization and to create mechanisms for carrying it into effect, and we would have had to do this in the face of legislative history indicating that the Postmaster General, when he had testified before Congress, had expressly sought to forestall judicial review pending completion of administrative proceedings. See 400 U. S., at 420 n. 8. No such obstacles confront us in construing § 1305 (a). In fact, the reading into the section of the time limits required by Freedman is fully consistent with its legislative purpose. When the statute, which in its present form dates back to 1930, was first presented to the Senate, concern immediately arose that it did not provide for determinations of obscenity to be made by courts rather than administrative officers and that it did not require that judicial rulings be obtained promptly. In language strikingly parallel to that of the Court in Freedman, Senator Walsh protested against the “attempt to enact a law that would vest an administrative officer with power to take books and confiscate them and destroy them, because, in his judgment, they were obscene or indecent,” and urged that the law “oblige him to go into court and file his information there . . . and have it determined in the usual way, the same as every other crime is determined.” 72 Cong. Rec. 5419. Senator Wheeler likewise could not “conceive how any man” could “possibly object” to an amendment to the proposed legislation that required a customs officer, if he concluded material was obscene, to “tur[n] it over to the district attorney, and the district attorney prosecutes the man, and he has the right of trial by jury in that case.” 71 Cong. Rec. 4466. Other Senators similarly indicated their aversion to censorship “by customs clerks and bureaucratic officials,” id., at 4437 (remarks of Sen. Dill), preferring that determinations of obscenity should be left to courts and juries. See, e. g., id., at 4433—4439, 4448, 4452-4459; 72 Cong. Rec. 5417-5423, 5492, 5497. Senators also expressed the concern later expressed in Freedman that judicial proceedings be commenced and concluded promptly. Speaking in favor of another amendment, Senator Pittman noted that a customs officer seizing obscene matter “should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate . . . Id., at 5420 (emphasis added). Commenting on an early draft of another amendment that was ultimately adopted, Senator Swanson noted that officers would be required to go to court “immediately.” Id., at 5422. Then he added: “The minute there is a suspicion on the part of a revenue or customs officer that a certain book is improper to be admitted into this country, he presents the matter to the district court, and there will be a prompt determination of the matter by a decision of that court.” Id., at 5424 (emphasis added). Before it finally emerged from Congress, § 1305 (a) was amended in response to objections of the sort voiced above: it thus reflects the same policy considerations that induced this Court to hold in Freedman that censors must resort to the courts “within a specified brief period” and that such resort must be followed by “a prompt final judicial decision . . . .” 380 U. S., at 59. Congress' sole omission was its failure to specify exact time limits within which resort to the courts must be had and judicial proceedings be completed. No one during the congressional debates ever suggested inclusion of such limits, perhaps because experience had not yet demonstrated a need for them. Since 1930, however, the need has become clear. Our researches have disclosed cases sanctioning delays of as long as 40 days and even six months between seizure of obscene goods and commencement of judicial proceedings. See United States v. 77 Cartons of Magazines, 300 F. Supp. 851 (ND Cal. 1969); United States v. One Carton Positive Motion Picture Film Entitled “491,” 247 F. Supp. 450 (SDNY 1965), rev’d on other grounds, 367 F. 2d 889 (CA2 1966). Similarly, we have found cases in which completion of judicial proceedings has taken as long as three, four, and even seven months. See United States v. Ten Erotic Paintings, 311 F. Supp. 884 (Md. 1970); United States v. 35 MM Color Motion Picture Film Entitled “Language of Love,” 311 F. Supp. 108 (SDNY 1970); United States v. One Carton Positive Motion Picture Film Entitled “491,” supra. We conclude that to sanction such delays would be clearly inconsistent with the concern for promptness that was so frequently articulated during the course of the Senate’s debates, and that fidelity to Congress’ purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305 (a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful. See 19 U. S. C. § 1652. Nor does the construction of § 1305 (a) to include specific time limits require us to decide issues of policy appropriately left to the Congress or raise other questions upon which Congress possesses special legislative expertise, for Congress has already set its course in favor of promptness and we possess as much expertise as Congress in determining the sole remaining question — that of the speed with which prosecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305 (a) matters. We accordingly see no reason for declining to specify the time limits which must be incorporated into § 1305 (a) — a specification that is fully consistent with congressional purpose and that will obviate the constitutional objections raised by claimant. Indeed, we conclude that the legislative history of the section and the policy of giving legislation a saving construction in order to avoid decision of constitutional questions require that we undertake this task of statutory construction. We begin by examining cases in the lower federal courts in which proceedings have been brought under § 1305 (a). That examination indicates that in many of the cases that have come to our attention the Government in fact instituted forfeiture proceedings within 14 days of the date of seizure of the allegedly obscene goods, see United States v. Reliable Sales Co., 376 F. 2d 803 (CA4 1967); United States v. 1,000 Copies of a Magazine Entitled “Solis,” 254 F. Supp. 595 (Md. 1966); United States v. 56 Cartons Containing 19,500 Copies of a Magazine Entitled “Hellenic Sun,” 253 F. Supp. 498 (Md. 1966), aff’d, 373 F. 2d 635 (CA4 1967); United States v. 392 Copies of a Magazine Entitled “Exclusive,” 253 F. Supp. 485 (Md. 1966); and judicial proceedings were completed within 60 days of their commencement. See United States v. Reliable Sales Co., supra; United States v. 1,000 Copies of a Magazine Entitled “Solis,” supra; United States v. 56 Cartons Containing 19,500 Copies of a Magazine Entitled “Hellenic Sun,” supra; United States v. 392 Copies of a Magazine Entitled “Exclusive,” supra; United States v. 127,295 Copies of Magazines, More or Less, 295 F. Supp. 1186 (Md. 1968). Given this record, it seems clear that no undue hardship will be imposed upon the Government and the lower federal courts by requiring that forfeiture proceedings be commenced within 14 days and completed within 60 days of their commencement; nor does a delay of as much as 74 days seem undue for importers engaged in the lengthy process of bringing goods into this country from abroad. Accordingly, we construe § 1305 (a) to require intervals of no more than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court. No seizure or forfeiture will be invalidated for delay, however, where the claimant is responsible for extending either administrative action or judicial determination beyond the allowable time limits or where administrative or judicial proceedings are postponed pending the consideration of constitutional issues appropriate only for a three-judge court. Of course, we do not now decide that these are the only constitutionally permissible time limits. We note, furthermore, that constitutionally permissible limits may vary in different contexts; in other contexts, such as a claim by a state censor that a movie is obscene, the Constitution may impose different requirements with respect to the time between the making of the claim and the institution of judicial proceedings or between their commencement and completion than in the context of a claim of obscenity made by customs officials at the border. We decide none of these questions today. We do nothing in this case but construe § 1305 (a) in its present form, fully cognizant that Congress may re-enact it in a new form specifying mew time limits, upon whose constitutionality we may then be required to pass. So construed, § 1305 (a) may constitutionally be applied to the case before us. Seizure in the present case took place on October 24 and forfeiture proceedings were instituted on November 6 — a mere 13 days after seizure. Moreover, decision on the obscenity of Luros’ materials might well have been forthcoming within 60 days had claimant not challenged the validity of the statute and caused a three-judge court to be convened. We hold that proceedings of such brevity fully meet the constitutional standards set out in Freedman, Teitel, and Blount. Section 1305 (a) accordingly may be applied to the 37 photographs, providing that on remand the obscenity issue is resolved in the District Court within 60 days, excluding any delays caused by Luros. II We next consider Luros’ second claim, which is based upon Stanley v. Georgia, supra. On the authority of Stanley, Luros urged the trial court to construe the First Amendment as forbidding any restraints on obscenity except where necessary to protect children or where it intruded itself upon the sensitivity or privacy of an unwilling adult. Without rejecting this position, the trial court read Stanley as protecting, at the very least, the right to read obscene material in the privacy of one’s own home and to receive it for that purpose. It therefore held that § 1305 (a), which bars the importation of obscenity for private use as well as for commercial distribution, is overbroad and hence unconstitutional. The trial court erred in reading Stanley as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use. In United States v. Reidel, ante, p. 351, we have today held that Congress may constitutionally prevent the mails from being used for distributing pornography. In this case, neither Luros nor his putative buyers have rights that are infringed by the exclusion of obscenity from incoming foreign commerce. By the same token, obscene materials may be removed from the channels of commerce when discovered in the luggage of a returning foreign traveler even though intended solely for his private use. That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce. Stanley’s emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officers characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country. Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extend to one who is seeking, as was Luros here, to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution. As we held in Roth v. United States, 354 U. S. 476 (1957), and reiterated today in Reidel, supra, obscenity is not within the scope of First Amendment protection. Hence Congress may declare it contraband and prohibit its importation, as it has elected in § 1305 (a) to do. The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [For dissenting opinion of Mr. Justice Marshall, see ante, p. 360.] Mr. Justice HarlaN and Mr. Justice Stewart also join Part I of the opinion. 19 U. S. C. § 1305 (a) provides in pertinent part: “AH persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral .... No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the collector that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided .... Provided, further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes. “Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the collector. Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section. “In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinaria actions or suits.” The United States urges that we find time limits in 19 U. S. C. §§ 1602 and 1604. Section 1602 provides that customs agents who seize goods must "report every such seizure immediately” to the collector of the district, while § 1604 provides that, once a case has been turned over to a United States Attorney, it shall be his duty “immediately to inquire into the facts” and “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay,” if he concludes judicial proceedings are appropriate. We need not decide, however, whether §§ 1602 and 1604 can properly be applied to cure the invalidity of § 1305 (a), for even if they were applicable, they would not provide adequate time limits and would not cure its invalidity. The two sections contain no specific time limits, nor do they require the collector to act promptly in referring a matter to the United States Attorney for prosecution. Another flaw is that § 1604 requires that, if the United States Attorney declines to prosecute, he must report the facts to the Secretary of the Treasury for his direction, but the Secretary is under no duty to act with speed. The final flaw is that neither section requires the District Court in which a case is commenced to come promptly to a final decision. The District Court’s opinion is not entirely clear. The court may have reasoned that Luros had a right to import the 37 photographs in question for planned distribution to the general public, but our decision today in United States v. Reidel, ante, p. 351, makes it clear that such reasoning would have been in error. On the other hand, the District Court may have reasoned that, while Luros had no right to import the photographs for distribution, a person would have a right under Stanley to import them for his own private use and that § 1305 (a) was therefore void as over-broad because it prohibits both sorts of importation. If this was the court’s reasoning, the proper approach, however, was not to invalidate the section in its entirety, but to construe it narrowly and hold it valid in its application to Luros. This was made clear in Dombrowski v. Pfister, 380 U. S. 479, 491-492 (1965), where the Court noted that, once the overbreadth of a statute has been sufficiently dealt with, it may be applied to prior conduct foreseeably within its valid sweep.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 20 ]	sc_adminaction
UNITED STATES v. JOHN DOE, INC. I, et al. No. 85-1613. Argued January 12, 1987 Decided April 21, 1987 Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Powell, O’Connor, and Scalia, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 117. White, J., took no part in the consideration or decision of the case. Deputy Solicitor General Cohen argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorneys General Ginsburg and Willard, Deputy Assistant Attorney General Cannon, Paul J. Larkin, Jr., Robert B. Nicholson, Douglas N. Letter, Anna Swerdel, and Carolyn G. Mark. Paul R. Grand argued, the cause for respondents. With him on the brief were Theodore V. Wells, Jr., Walter Sterling Surrey, Carol M. Welu, arid Howard Adler, Jr /. Randolph Wilson, William H. Allen, David A. Donohoe, Owen M. Johnson, Jr., and Paul B. Hewitt filed a brief for Areher-Daniels-Midland Co. et al. as amici curiae urging affirmance. Justice Stevens delivered the opinion of the Court. In United States v. Sells Engineering, Inc., 463 U. S. 418 (1983), we held that attorneys for the Civil Division of the Justice Department may not automatically obtain disclosure of grand jury materials for use in a civil suit, but must instead seek a court order of disclosure, available upon a showing of “particularized need.” We explicitly left open the “issue concerning continued use of grand jury materials, in the civil phase of a dispute, by an attorney who himself conducted the criminal prosecution.” Id., at 431, n. 16. Today, we decide that open question. In addition, for the first time, we review a concrete application of the “particularized need” standard to a request for disclosure to Government attorneys. I In March 1982, attorneys in the Antitrust Division of the Department of Justice were authorized to conduct a grand jury investigation of three American corporations suspected of conspiring to fix the price of tallow being sold to a foreign government and financed by the Department of State’s Agency for International Development. After subpoenaing thousands of documents from the three corporate respondents, and taking the testimony of numerous witnesses, including the five individual respondents, the Department of Justice conferred with some of respondents’ attorneys and concluded that although respondents had violated §1 of the Sherman Act, 15 U. S. C. § 1, criminal prosecution was not warranted under the circumstances. In early June 1984, the grand jury was discharged without returning any indictments. On June 28, 1984, the attorneys who had been in charge of the grand jury investigation served Civil Investigative Demands (CID’s), pursuant to the Antitrust Civil Process Act, 76 Stat. 548, as amended, 15 U. S. C. §§ 1311-1314, on approximately two dozen persons and entities, including the corporate respondents, calling for the production of various documents. The Antitrust Division advised each respondent that it could comply with the CID by certifying that the requested documents had already been furnished to the grand jury. Two of the corporate respondents refused to do so, and also refused to furnish any additional copies of the documents. After further investigation, the Antitrust Division attorneys came to the tentative conclusion that respondents had violated the False Claims Act, 31 U. S. C. §§3729-3731, and the Foreign Assistance Act, 22 U. S. C. §§2151-2429 (1982 ed. and Supp. Ill), as well as the Sherman Act. Because the Civil Division of the Department of Justice has primary responsibility for enforcing the False Claims Act, see 28 CFR § 0.45(d) (1986), the Antitrust Division deemed it appropriate to consult with lawyers in the Civil Division before initiating a civil action. Additionally, because of the venue of the contemplated civil action, the Antitrust Division felt it necessary to consult with the United States Attorney for the Southern District of New York. Accordingly, the Antitrust Division lawyers filed a motion in the District Court for the Southern District of New York requesting an order under Federal Rule of Criminal Procedure 6(e) allowing them to disclose grand jury material to six named Government attorneys and such associates as those attorneys might designate. After an ex 'parte hearing, the District Court granted the motion, based on its finding that the Government’s interest in coordinating fair and efficient enforcement of the False Claims Act, and obtaining the Civil Division’s and United States Attorney’s expert consultation, constituted a particularized need for the requested disclosure. On March 6, 1985, the Government advised respondents that the Rule 6(e) order had previously been entered and that a civil action would be filed against them within two weeks. Respondents immediately moved to vacate the Rule 6(e) order and, additionally, to enjoin the Government from using the grand jury information in “preparing, filing, or litigating” the anticipated civil action. The District Court denied both forms of relief. Respondents immediately appealed, and also moved for immediate interim relief from the Court of Appeals for the Second Circuit. The Court of Appeals granted partial relief, allowing the Government to file a complaint, but ordering that it be filed under seal. After expedited consideration, The Court of Appeals reversed both aspects of the District Court’s order. In re Grand Jury Investigation, 774 F. 2d 34 (1985). First, the court examined the issue left open in Sells, and agreed with respondents that, because the attorneys who had worked on the grand jury investigation were now involved only in civil proceedings, the attorneys were forbidden from making continued use of grand jury information without first obtaining a court order. 774 F. 2d, at 40-43. Nonetheless, the Court of Appeals took no action with respect to the complaint that had been filed, because the court concluded that the complaint disclosed nothing about the grand jury investigation. Id., at 42. With respect to the District Court’s order allowing disclosure to the six attorneys for consultation purposes, the Court of Appeals held that the order was not supported by an adequate showing of “particularized need.” Id., at 37-40. We granted certiorari, 476 U. S. 1140 (1986), and now reverse. l — I HH The “General Rule of Secrecy set forth m Federal Rule of Criminal Procedure 6(e) provides that certain persons, including attorneys for the Government, “shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules.” Unlike our previous decisions in this area, which have primarily involved exceptions to the general rule, this case involves a more preliminary question: what constitutes disclosure? The Court of Appeals acknowledged that “to characterize [attorneys’] continued access in the civil phase to the materials to which they had access in the criminal phase as disclosure within the meaning of rule 6(e) seems fictional at first glance.” 774 F. 2d, at 40. But the Court of Appeals reasoned that the attorneys could not possibly remember all the details of the grand jury investigation and therefore the use of grand jury materials “to refresh their recollection as to documents or testimony to which they had access in the grand jury proceeding is tantamount to a further disclosure.” Ibid. Contrary to the Court of Appeals’ conclusion, it seems plain to us that Rule 6(e) prohibits those with information about the workings of the grand jury from revealing such information to other persons who are not authorized to have access to it under the Rule. The Rule does not contain a prohibition against the continued use of information by attorneys who legitimately obtained access to the information through the grand jury investigation. The Court of Appeals’ reasoning is unpersuasive because it stretches the plain meaning of the Rule’s language much too far. It is indeed fictional — and not just “at first glance” — to interpret the word “disclose” to embrace a solitary reexamination of material in the privacy of an attorney’s office. For example, it is obvious that the prohibition against disclosure does not mean that an attorney who prepared a legal memorandum (which happens to include some information about matters related to the workings of the grand jury) for his file, is barred from looking at the memorandum once the grand jury investigation terminates. As the Court of Appeals for the Eighth Circuit recently concluded, “[f]or there to be a disclosure, grand jury matters must be disclosed to someone.” United States v. Archer-Daniels-Midland Co., 785 F. 2d 206, 212 (1986), cert. pending, No. 85-1840. Because we decide this case based, on our reading of the Rule’s plain language, there is no need to address the parties’ arguments about the extent to which continued use threatens some of the values of grand jury privacy identified in our cases and cataloged in Sells Engineering, 463 U. S., at 432-433. While such arguments are relevant when language is susceptible of more than one plausible interpretation, we have recognized that in some cases “[w]e do not have before us a choice between a ‘liberal’ approach toward [a Rule], on the one hand, and a ‘technical’ interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says.” Schiavone v. Fortune, 477 U. S. 21, 30 (1986). As for the policy arguments, it suffices to say that, as the Court of Appeals recognized, the implications of our construction are not so absurd or contrary to Congress’ aims as to call into question our construction of the plain meaning of the term “disclosure” as used in this Rule. Respondents urge in the alternative that Rule 6(e) prohibits attorneys’ continued use of grand jury materials because the filing of a civil complaint itself discloses grand jury materials to outsiders. Respondents argue that such disclosure is inevitable because a civil complaint’s factual allegations will invariably be based on information obtained during the grand jury investigation. This hypothetical fear is not substantiated by the record in this case. The Court of Appeals stated that the Government’s complaint “does not quote from or refer to any grand jury transcripts or documents subpoenaed by the grand jury, and does not mention any witnesses before the grand jury, or even refer to the existence of a grand jury.” 774 F. 2d, at 37. Nor do respondents identify anything in the complaint that indirectly discloses grand jury information. We have no basis for questioning the accuracy of the Court of Appeals’ conclusion that the filing of the complaint did not constitute a prohibited disclosure. A Government attorney may have a variety of uses for grand jury material in a planning stage, even though the material will not be used, or even alluded to, in any filing or proceeding. In this vein, it is important to emphasize that the issue before us is only whether an attorney who was involved in a grand jury investigation (and is therefore presumably familiar with the “matters occurring before the grand jury”) may later review that information in a manner that does not involve any further disclosure to others. Without addressing the very different matter of an attorney’s disclosing grand jury information to others, inadvertently or purposefully, in the course of a civil proceeding, we hold that Rule 6(e) does not require the attorney to obtain a court order before refamiliarizing himself or herself with the details of a grand jury investigation. I — I I — I I — I The Department of Justice properly recognized that under our holding in Sells it could not disclose information to previously uninvolved attorneys from the Civil Division or the United States Attorney’s office without a court order pursuant to Rule 6(e)(3)(C)(i). Upon the Department’s motion, the District Court granted an order, finding a “particularized need for disclosure” pursuant to the considerations described in Sells. The District Court accepted the Government’s argument that consultation and coordination between the Civil Division, the United States Attorney, and the Antitrust Division was necessary to ensure consistent enforcement of the False Claims Act and “the fair and evenhanded administration of justice.” App. 14. The Court of Appeals reversed on this point, however, concluding that disclosure was unnecessary because the same, information could eventually have been obtained through civil discovery. In Sells we noted that Rule 6(e) itself does not prescribe the substantive standard governing the issuance of an order pursuant to Rule 6(e)(3)(C)(i) and that the case law that had developed in response to requests for disclosure by private parties had consistently required “a strong showing of particularized need” before disclosure is permitted. 463 U. S., at 443-445; see generally Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 222-223 (1979). Although we held that this same standard applies where a court is asked to order disclosure to a government attorney, see 463 U. S., at 443-444; Illinois v. Abbott & Associates, Inc., 460 U. S. 557 (1983), we made it clear that the concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves Government attorneys. “Nothing in Douglas Oil, however, requires a district court to pretend that there are no differences between governmental bodies and private parties. The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others. Hence, although Abbott and the legislative history foreclose any special dispensation from the Douglas Oil standard for Government agencies, the standard itself accommodates any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case. For example, a district court might reasonably consider that disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public. Similarly, we are informed that it is the usual policy of the Justice Department not to seek civil use of grand jury materials until the criminal aspect of the matter is closed. Cf. Douglas Oil, supra, at 222-223. And ‘under the particularized-need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body . . . Abbott, supra, at 567-568, n. 15. On the other hand, for example, in weighing the need for disclosure, the court could take into account any alternative discovery tools available by statute or regulation to the agency seeking disclosure.” 463 U. S., at 445. In this case, the disclosures were requested to enable the Antitrust Division lawyers who had conducted the grand jury investigation to obtain the full benefit of the experience and expertise of the Civil Division lawyers who regularly handle litigation under the False Claims Act, and of the local United States Attorney who is regularly consulted before actions are filed in his or her district. The public purposes served by the disclosure — efficient, effective, and evenhanded enforcement of federal statutes — are certainly valid and were not questioned by the Court of Appeals. Particularly because the contemplated use of the material was to make a decision on whether to proceed with a civil action, the disclosure here could have had the effect of saving the Government, the potential defendants, and witnesses the pains of costly and time-consuming depositions and interrogatories which might have later turned out to be wasted if the Government decided not to file a civil action after all. To be sure, as we recognized in Sells, not every instance of “saving time and expense” justifies disclosure. Id., at 431. The question that must be asked is whether the public benefits of the disclosure in this case outweigh the dangers created by the limited disclosure requested. In Sells we recognized three types of dangers involved in disclosure of grand jury information to Government attorneys for use related to civil proceedings. First, we stated that disclosure not only increases the “number of persons to whom the information is available (thereby increasing the risk of inadvertent or illegal release to others), but also it renders considerably more concrete the threat to the willingness of witnesses to come forward and to testify fully and candidly.” Id., at 432 (footnote omitted). Neither of these fears is well founded with respect to the narrow disclosure involved in this case. The disclosure of a summary of a portion of the grand jury record to named attorneys for purposes of consultation does not pose the same risk of a wide breach of grand jury secrecy as would allowing unlimited use of the material to all attorneys in another division — the disclosure involved in Sells. Moreover, the fact that the grand jury had already terminated mitigates the damage of a possible inadvertent disclosure. See id., at 445. Finally, because the disclosure authorized in this case would not directly result in any witness’ testimony being used against him or her in a civil proceeding, there is little fear that the disclosure will have any effect on future grand jury testimony. The second concern identified in Sells is the threat to the integrity of the grand jury itself. We explained that if “prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely.” Id., at 432. The discussion of this concern in Sells dealt with whether the Civil Division should be given unfettered access to grand jury materials. We think the concern is far less worrisome when the attorneys seeking disclosure must go before a court and demonstrate a particularized need prior to any disclosure, and when, as part of that inquiry, the district court may properly consider whether the circumstances disclose any evidence of grand jury abuse. In this case, for example, one of the Government attorneys involved in the criminal investigation submitted an affidavit attesting to the Department’s good faith in conducting the grand jury investigation, App. 17-19, and there has been no evidence or allegation to the contrary. The fact that a court is involved in this manner lessens some of the usual difficulty in detecting grand jury abuse. See Sells, 463 U. S., at 432. Moreover, we think the fear of abuse is minimal when the civil use contemplated is simply consultation with various Government lawyers about the prudence of proceeding with a civil action. The final concern discussed in Sells is that “use of grand jury materials by Government agencies in civil or administrative settings threatens to subvert the limitations applied outside the grand jury context on the Government’s powers of discovery and investigation.” Id., at 433. We continue to believe that this is an important concern, but it is not seriously implicated when the Government simply wishes to use the material for consultation. Of course, when the Government requests disclosure for use in an actual adversarial proceeding, this factor (as well as the others) may require a stronger showing of necessity. We have explained that “as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury [material] will have a lesser burden in showing justification.” Douglas Oil, 441 U. S., at 223. Although it recognized that the disclosure in this case did not seriously threaten the values of grand jury secrecy, the Court of Appeals nonetheless concluded that the request for disclosure should have been denied because virtually all of the relevant information could have been obtained from respondents through discovery under the Antitrust Civil Process Act. The Court of Appeals believed that the delay and expense that would be caused by such duplicative discovery was not a relevant factor in the particularized need analysis. 774 F. 2d, at 39. While the possibility of obtaining information from alternative sources is certainly an important factor, we believe that the Court of Appeals exaggerated its significance in this case. Even if we assume that all of the relevant material could have been obtained through the civil discovery tools available to the Government, our precedents do not establish a per se rule against disclosure. Rather, we have repeatedly stressed that wide discretion must be afforded to district court judges in evaluating whether disclosure is appropriate. See Douglas Oil, 441 U. S., at 228; id., at 236-237 (Stevens, J., dissenting); Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399 (1959). The threat to grand jury secrecy was minimal in this context, and under the circumstances, the District Court properly considered the strong “public interests served” through disclosure. See Sells, 463 U. S., at 445; id., at 469-470 (Burger, C. J., dissenting). As we noted in Sells, the governing standard is “a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others.” Id., at 445. The District Court correctly examined the relevant factors and we cannot say that it abused its discretion in determining that the equities leaned in favor of disclosure. The judgment of the Court of Appeals is Reversed. Justice White took no part in the consideration or decision of this ease. The Court of Appeals rejected respondents’ challenge to the ex parte nature of the initial Rule 6(e) hearing. 774 F. 2d, at 37. Respondents have not cross-petitioned for certiorari on that point, and we do not address it. Rule 6(e) provides, in relevant part, as follows: “Recording and Disclosure of Proceedings. “(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. . . . “(3) Exceptions. “(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to— “(i) an attorney for the government for use in the performance of such attorney’s duty; and “(ii) such government personnel... as are deemed necessary ... to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law. “(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in performance of such attorney’s duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury . . . with the names of the persons to whom such disclosure has been made. “(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— “(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or “(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” See, e. g., United States v. Procter & Gamble Co., 356 U. S. 677 (1958); Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395 (1959); Dennis v. United States, 384 U. S. 855 (1966); Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211 (1979); Illinois v. Abbott & Associates., Inc., 460 U. S. 557 (1983); United States v. Sells Engineering, Inc., 463 U. S. 418 (1983); United States v. Baggott, 463 U. S. 476 (1983). The word “disclose” is not defined in the Rule, but the common dictionary definitions include to “open up,” to “expose to view,” to “open up to general knowledge,” and to “make known or public . . . something previously held close or secret.” See Webster’s Third New International Dictionary 645 (1976); Webster’s New Collegiate Dictionary 325 (1977). In Procter & Gamble, the Court listed the following reasons for grand jury secrecy: ‘“(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.’” 356 U. S., at 681, n. 6, quoting United States v. Rose, 215 F. 2d 617, 628-629 (CA3 1954). Justice Brennan argues that “there can be little doubt that grand jury information was used” in preparing the complaint. Post, at 124, n. 5. Mere “use” of grand jury information in the preparation of a civil complaint would not constitute prohibited disclosure. In this ease, for example, one cannot say whether the Government relied at all on the grand jury information. The Government obviously had some evidence of wrongdoing (or at least suspicion) before it convened the grand jury. The general allegations of the civil complaint may well have disclosed nothing that the Government attorneys did not already know before they convened the grand jury, even though the grand jury investigation corroborated the previously known facts. To be sure, the Government’s decision to bring a civil action was “based on the evidence obtained in the course of its grand jury testimony,” ibid., but this does not mean that the complaint disclosed any of that information, or that, as Justice BRENNAN believes, post, at 128, the Government has no interest in the material unless it actually introduces it or otherwise discloses it at trial. Rule 6(e)(3)(C)(i) provides: “(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— “(i) when so directed by a court preliminarily to or in connection with a judicial proceeding.” In Douglas Oil, we described the standard as follows: “Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed . . . .” 441 U. S., at 222. The Court of Appeals was also concerned about the specificity of the requested disclosure. While this concern was appropriate, the lack of particularity was not overly dangerous in this setting because the interest in preserving secrecy from Civil Division lawyers was minimal, and the Antitrust lawyers obviously would not have any reason to burden them with portions of the record that were not relevant to the advisory task that they were being asked to perform. It is far from clear that this assumption is accurate. Only in 1986 did Congress amend the False Claims Act so as to allow the use of CID’s for investigations of violations of that Act. See Pub. L. 99-562, 100 Stat. 3153. In addition, the Government’s opportunity to proceed with civil discovery before deciding whether to file a civil complaint was significantly hampered by the fact that the statute of limitations on one of the claims was to run shortly after the grand jury was dismissed. Based on his assumption that any complaint filed would necessarily disclose grand jury information, Justice BRENNAN concludes that there could be no legitimate justification for disclosure to the Civil Division lawyers and the United States Attorney for consultation purposes. This argument misses two points. First, the Antitrust Division may have wanted the attorneys’ advice on the matter even if they would not have been able to disclose the actual grand jury materials in a subsequent civil proceeding. See n. 6, supra. Second, in the event that the consultations confirmed the position that a civil suit was appropriate, the Antitrust Division attorneys may have planned on eventually seeking a second court order that would allow them to disclose the material in a civil suit. See post, at 127 (Government may, of course, seek court order permitting disclosure in civil case). The purpose of the consultation, therefore, was not necessarily intertwined with any disclosure that Justice Brennan believes is prohibited.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 26 ]	sc_adminaction
CONNECTICUT BOARD OF PARDONS et al. v. DUMSCHAT et al. No. 79-1997. Argued February 24, 1981 Decided June 17, 1981 Burger, C. J., delivered the opinion of the Court, in which Brennan, Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., post, p. 467, and White, J., post, p. 467, filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 468. Stephen J. O’Neill, Assistant Attorney General of Connecticut, argued the cause for petitioners. With him on the brief was Carl R. Ajello, Attorney General. Stephen Wizner argued the cause for respondents. With him on the brief were Dennis E. Curtis and John L. Pot-tenger, Jr. Chief Justice Burger delivered the opinion of the Court. The question presented is whether the fact that the Connecticut Board of Pardons has granted approximately three-fourths of the applications for commutation of life sentences creates a constitutional “liberty interest” or “entitlement” in life-term inmates so as to require that Board to explain its reasons for denial of an application for commutation. I In 1964, respondent Dumschat was sentenced to life imprisonment for murder. Under state law, he was not eligible for parole until December 1983. The Connecticut Board of Pardons is empowered to commute the sentences of life inmates by reducing the minimum prison term, and such a commutation accelerates eligibility for parole. The authority of the Board of Pardons derives from Conn. Gen. Stat. § 18-26 (1981), which provides in pertinent part: “(a) Jurisdiction over the granting of, and the authority to grant, commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the board of pardons. “(b) Said board shall have authority to grant pardons, conditioned or absolute, for any offense against the state at any time after the imposition and before or after the service of any sentence.” On several occasions prior to the filing of this suit in February 1976, Dumschat applied for a commutation of his sentence. The Board rejected each application without explanation. Dumschat then sued the Board under 42 U. S. C. § 1983, seeking a declaratory judgment that the Board’s failure to provide him with a written statement of reasons for denying commutation violated his rights guaranteed by the Due Process Clause of the Fourteenth Amendment. After hearing testimony from officials of the Board of Pardons and the Board of Parole, the District Court concluded (a) that Dumschat had a constitutionally protected liberty entitlement in the pardon process, and (b) that his due process rights had been violated when the Board of Pardons failed to give “a written statement of reasons and facts relied on” in denying commutation. 432 F. Supp. 1310, 1315 (1977). The court relied chiefly on a showing that “at least 75 percent of all lifers received some favorable action from the pardon board prior to completing their minimum sentences” and that virtually all of the pardoned inmates were promptly paroled. Id., at 1314. In response to postjudgment motions, the District Court allowed other life inmates to intervene, certified the suit as a class action, and heard additional evidence. The court held that all prisoners serving life sentences in Connecticut state prisons have a constitutionally protected expectancy of commutation and therefore that they have a right to a statement of reasons when commutation is not granted. The Court of Appeals affirmed. 593 F. 2d 165 (CA2 1979). A petition for a writ of certiorari was filed, and we vacated and remanded for reconsideration in light of Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979). 442 U. S. 926 (1979). On remand, the Court of Appeals reaffirmed its original decision, 618 F. 2d 216 (CA2 1980), stating: “In marked contrast [to the Nebraska statute considered in Oreenholtz], Connecticut’s pardons statute contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons. Instead, the statute grants the board unfettered discretion in the exercise of its power. The statute offers only the 'mere hope’ of pardon; it does not create a legitimate expectation of freedom and therefore does not implicate due process.” Id., at 219 (citation omitted). The Court of Appeals also noted that the District Court’s holding that the mere possibility of a pardon creates a constitutionally cognizable liberty interest or entitlement was “no longer tenable” in light of Greenholtz. 618 F. 2d, at 221; see 442 U. S., at 8-11. However, the Court of Appeals then proceeded to conclude that “[t]he overwhelming likelihood that Connecticut life inmates will be pardoned and released before they complete their minimum terms gives them a constitutionally protected liberty interest in pardon proceedings.” 618 F. 2d, at 220. The Court of Appeals also understood our opinion in Greenholtz to hold that under the Due Process Clause, a brief statement of reasons is “not only constitutionally sufficient but also constitutionally necessary.” 618 F. 2d, at 222. On that reading of Greenholtz, the case was remanded to the District Court for a determination of “how many years life inmates must serve before the probability of pardon becomes so significant as to give rise to a protected liberty interest.” II A A state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right. See Meachum v. Fano, 427 U. S. 215, 226 (1976); Wolff v. McDonnell, 418 U. S. 539, 557 (1974). Plainly, however, the underlying right must have come into existence before it can trigger due process protection. See, e. g., Leis v. Flynt, 439 U. S. 438, 442-443 (1979). In Greenholtz, far from spelling out any judicially divined “entitlement,” we did no more than apply the unique Nebraska statute. We rejected the claim that a constitutional entitlement to release from a valid prison sentence exists in-dependency of a right explicitly conferred by the State. Our language in Greenholtz leaves no room for doubt: “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: ‘[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.’ ” 442 U. S., at 7 (emphasis supplied; citation omitted). Greenholtz pointedly distinguished parole revocation and probation revocation cases, noting that there is a “critical” difference between denial of a prisoner’s request for initial release on parole and revocation of a parolee’s conditional liberty. Id., at 9-11, quoting, inter alia, Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1296 (1975). Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review. Cf. Meachum v. Fano, supra, at 225. A decision whether to commute a long-term sentence generally depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior by those entrusted with the decision. A commutation decision therefore shares some of the characteristics of a decision whether to grant parole. See Greenholtz, 442 U. S., at 9-10. Far from supporting an “entitlement,” Greenholtz therefore compels the conclusion that an inmate has “no constitutional or inherent right” to commutation of his sentence. Respondents nevertheless contend that the Board’s consistent practice of granting commutations to most life inmates is sufficient to create a protectible liberty interest. They argue: “[T]he State Board has created an unwritten common law of sentence commutation and parole acceleration for Connecticut life inmates. ... In effect, there is an unspoken understanding between the State Board and inmates. The terms are simple: If the inmate cooperates with the State, the State will exercise its parole power on the inmate’s behalf. Both the State and the inmate recognize those terms. Each expects the other to abide by them.” Brief for Respondents 17-18. This case does not involve parole, and respondents’ argument wholly misconceives the nature of a decision by a state to commute the sentence of a convicted felon. The petition in each case is nothing more than an appeal for clemency. See Schick v. Reed, 419 U. S. 256, 260-266 (1974). In terms of the Due Process Clause, a Connecticut felon’s expectation that a lawfully imposed sentence will be commuted or that he .will be pardoned is no more substantial than an inmate’s expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope. Greenholtz, supra, at 11; see Leis v. Flynt, 439 U. S., at 443-444. A constitutional entitlement cannot “be created — as if by estoppel — merely because a wholly and expressly discretionary state privilege has been granted generously in the past.” Id., at 444, n. 5. No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency. B The Court of Appeals correctly recognized that Connecticut has conferred “unfettered discretion” on its Board of Pardons, but — paradoxically—then proceeded to fetter the Board with a halter of constitutional “entitlement.” The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board. Respondents challenge the Board’s procedure precisely because of “the absence of any apparent standards.” Brief for Respondents 28. We agree that there are no explicit standards by way of statute, regulation, or otherwise. This contrasts dramatically with the Nebraska statutory procedures in Greenholtz, which expressly mandated that the Nebraska Board of Parole “shall” order the inmate’s release “unless” it decided that one of four specified reasons for denial was applicable. 442 U. S., at 11. The Connecticut commutation statute, having no definitions, no criteria, and no mandated “shalls,” creates no analogous duty or constitutional entitlement. It is clear that the requirement for articulating reasons for denial of parole in Greenholtz derived from unique mandates of the Nebraska statutes. Thus, although we noted that under the terms of the Nebraska statute, the inmates’ expectancy of parole release “is entitled to some measure of constitutional protection,” we emphasized that “this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Id., at 12. Moreover, from the standpoint of a reasons requirement, there is a vast difference between a denial of parole — particularly on the facts of Greenholtz — and a state’s refusal to commute a lawful sentence. When Nebraska statutes directed that inmates who are eligible for parole “shall” be released “unless” a certain finding has been made, the statutes created a right. By contrast, the mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or “entitlement.” A state cannot be required to explain its reasons for a decision when it is not required to act on prescribed grounds. We hold that the power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation. Reversed. A Connecticut inmate serving a life sentence, imposed before 1971, that does not have a specified minimum term must serve a minimum of 25 years in prison, less a maximum of 5 years’ good-time credits, unless the Board of Pardons commutes the sentence. See Conn. Gen. Stat. §54r-125 (1981). Effective in 1971, the sentencing judge must specify a minimum term, which may be as low as 10 years or as high as 25 years. Conn. Gen. Stat. § 53a-35 (c)(1) (1981). The Board of Pardons also has the power to grant immediate release in the form of an absolute pardon, but according to the District Court, that power has not been employed in recent history. 432 F. Supp. 1310, 1313 (Conn. 1977). The District Court noted that by virtue of this statute, Connecticut “stands outside the traditional scheme of clemency through application to the state’s chief executive.” The Governor of Connecticut has only the power to grant temporary reprieves. Id., at 1312. Parole determinations are made by the Board of Parole, a separate body. This case does not involve parole procedure; it involves only denials of commutations. Of the inmates whose minimum sentences have been commuted by the Board of Pardons, the Board of Parole has paroled approximately 90% during the first year of eligibility, and all have been paroled within a few years. App. 33, 39. The Chairman of the Board of Parole testified that “no more than 10 or 15 per cent” of Connecticut’s life inmates serve their 20-year minimum terms. Id., at 31. On the day that the District Court entered its declaratory judgment, the Board commuted Dumschat’s sentence to time served and granted him immediate release. The Board then moved to dismiss the suit as moot. The District Court denied the Board’s motion and permitted three other inmates to intervene. Those inmates were serving life terms for murder and had been denied commutation without statements of reasons. Two of them are still serving their sentences. According to respondents, there are approximately 35 persons in the certified class, which consists of all “inmates of the State of Connecticut who are currently serving sentences of life imprisonment [without court-imposed minimum terms] and who have been, or who will be, denied pardons during their current terms of incarceration” by the Board of Pardons. App. to Pet. for Cert. 21a; Brief for Petitioners ii; Tr. of Oral Arg. 36; see n. 1, supra. In the cited passage of Greenholtz, we said: “The Nebraska [statutory) procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.” 442 U. S., at 16. The Court of Appeals remarked that “[o]nly after this period has elapsed are lifers entitled to due process safeguards in the pardon process.” 618 F. 2d, at 221. Because it believed that every life inmate who is denied a pardon is constitutionally entitled to a statement of reasons, the District Court did not make such a determination prior to the decision of the Court of Appeals that is now before us. Id., at 220-221; see App. to Pet. for Cert. 25a. Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972). Respondents have not raised any equal protection claim. See Meachum v. Fano, 427 U. S. 215, 228 (1976).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
EC TERM OF YEARS TRUST v. UNITED STATES No. 05-1541. Argued February 26, 2007 Decided April 30, 2007 Souter, J., delivered the opinion for a unanimous Court. Francis S. Ainsa, Jr., argued the cause and filed briefs for petitioner. Deanne E. Maynard argued the cause for the United States. With her on the brief were Solicitor General Clement, Assistant Attorney General O’Connor, Deputy Solicitor General Hungar, Bruce R. Ellisen, and Teresa T. Milton. Justice Souter delivered the opinion of the Court. This is a challenge to the Internal Revenue Service’s levy upon the property of a trust, to collect taxes owed by another, an action specifically authorized by 26 U. S. C. § 7426(a)(1), but subject to a statutory filing deadline the trust missed. The question is whether the trust may still challenge the levy through an action for tax refund under 28 U. S. C. § 1346(a)(1). We hold that it may not I The Internal Revenue Code provides that “[i]f any person liable to pay any tax neglects or refuses to pay the same after demand, the amount . . . shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 26 U. S. C. §6321. “A federal tax lien, however, is not self-executing,” and the IRS must take “[ajffirmative action . . . to enforce collection of the unpaid taxes.” United States v. National Bank of Commerce, 472 U. S. 713, 720 (1985). One of its “principal tools,” ibid., is a levy, which is a “legally sanctioned seizure and sale of property,” Black’s Law Dictionary 926 (8th ed. 2004); see also § 6331(b) (“The term ‘levy’ as used in this title includes the power of distraint and seizure by any means”). To protect against a “ ‘[wrongful’ ” imposition upon “property which is not the taxpayer’s,” S. Rep. No. 1708, 89th Cong., 2d Sess., 30 (1966), the Federal Tax Lien Act of 1966 added § 7426(a)(1), providing that “[i]f a levy has been made on property . . . any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in . . . such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court.” 80 Stat. 1143. The action must, however, be brought before “the expiration of 9 months from the date of the levy.” § 6532(c)(1). This short limitations period contrasts with its counterpart in a tax-refund action under 28 U. S. C. § 1346(a)(1), which begins with an administrative claim that may be filed within at least two years, and may be brought to court within another two after an administrative denial. The demand for greater haste when a third party contests a levy is no accident; as the Government explained in the hearings before passage of the Act, “[s]ince after seizure of property for nonpayment of taxes [an IRS] district director is likely to suspend further collection activities against the taxpayer, it is essential that he be advised promptly if he has seized property which does not belong to the taxpayer.” Hearings on H. R. 11256 and H. R. 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 57-58 (1966) (written statement of Stanley S. Surrey, Assistant Secretary of the Treasury); see also id., at 72 (statement of Laurens Williams, Chairman, Special Committee on Federal Liens, American Bar Association) (“A short (9 month) statute of limitations is provided, because it is important to get such controversies decided quickly so the Government may pursue the taxpayer’s own property if it made a mistake the first time”). II After Elmer W. Cullers, Jr., and Dorothy Cullers established the EC Term of Years Trust in 1991, the IRS assessed federal tax liabilities against them for what the Government claimed (and the Trust does not dispute, see Tr. of Oral Arg. 7) were unwarranted income tax deductions in the 1980s. The Government assumed that the Cullerses had transferred assets to the Trust to evade taxes, and so filed a tax lien against the Trust in August 1999. The Trust denied any obligation, but for the sake of preventing disruptive collection efforts by the IRS, it deposited funds in a bank account, against which the IRS issued a notice of levy to the bank in September 1999. In October, the bank responded with a check for over $3 million to the United States Treasury. Almost a year after that, the Trust (joined by several other trusts created by the Cullerses) brought a civil action under 26 U. S. C. § 7426(a)(1) claiming wrongful levies, but the District Court dismissed it because the complaint was filed after the 9-month limitations period had expired, see § 6532(c)(1). The court also noted that tax-refund claims under 28 U. S. C. § 1346(a)(1) were not open to the plaintiff trusts because § 7426 “ 'affords the exclusive remedy for an innocent third party whose property is confiscated by the IRS to satisfy another person’s tax liability.’” BSC Term of Years Trust v. United States, 2001-1 USTC ¶ 50,1-74, p. 87,237, n. 1, 87 AFTR 2d ¶ 2001-390, p. 2001-547, n. 1 (WD Tex. 2000) (quoting Texas Comm. Bank Fort Worth, N. A. v. United States, 896 F. 2d 152, 156 (CA5 1990); emphasis deleted). At first the Trust sought review by the Court of Appeals for the Fifth Circuit, but then voluntarily dismissed its appeal. BSC Term of Years Trust v. United States, 87 AFTR 2d ¶ 2001-1039, p. 2001-2532 (2001). After unsuccessfully pursuing a tax refund at the administrative level, the Trust filed a second action, this one for a refund under § 1346(a)(1). The District Court remained of the view that a claim for a wrongful levy under § 7426(a)(1) had been the sole remedy possible and dismissed. The Court of Appeals for the Fifth Circuit affirmed. Because the Ninth Circuit, on the contrary, has held that § 7426(a)(1) is not the exclusive remedy for third parties challenging a levy, see WWSM Investors v. United States, 64 F. 3d 456 (1995), we granted certiorari to resolve the conflict, 549 U. S. 990 (2006). We affirm. Ill “In a variety of contexts the Court has held that a precisely drawn, detailed statute pre-empts more general remedies.” Brown v. GSA, 425 U. S. 820, 834 (1976); see Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 284-286 (1983) (adverse claimants to real property of the United States may not rely on “officer’s suits” or on other general remedies because the Quiet Title Act of 1972 is their exclusive recourse); see also Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 (1942) (venue in patent infringement cases is governed by a statute dealing specifically with patents, not a general venue provision). It braces the preemption claim when resort to a general remedy would effectively extend the limitations period for the specific one. See Brown v. GSA, supra, at 833 (rejecting an interpretation that would “driv[e] out of currency” a narrowly aimed provision “with its rigorous . . . time limitations” by permitting “access to the courts under other, less demanding statutes”); see also Rancho Palos Verdes v. Abrams, 544 U. S. 113, 122-123 (2005) (concluding that 47 U. S. C. § 332(c) precludes resort to the general cause of action under 42 U. S. C. § 1983, in part because § 332 “limits relief in ways that § 1983 does not” by requiring judicial review to be sought within 30 days); 544 U. S., at 130, n. (Stevens, J., concurring in judgment) (same). Resisting the force of the better fitted statute requires a good countervailing reason, and none appears here. Congress specifically tailored § 7426(a)(1) to third-party claims of wrongful levy, and if third parties could avail themselves of the general tax-refund jurisdiction of § 1346(a)(1), they could effortlessly evade the levy statute’s 9-month limitations period thought essential to the Government’s tax collection. The Trust argues that in United States v. Williams, 514 U. S. 527 (1995), we construed the general jurisdictional grant of § 1346(a)(1) expansively enough to cover third parties’ wrongful levy claims. So, according to the Trust, treating § 7426(a)(1) as the exclusive avenue for these claims would amount to a disfavored holding that § 7426(a)(1) implicitly repealed the pre-existing jurisdictional grant of § 1346(a)(1). See Radzanower v. Touche Ross & Co., 426 U. S. 148 (1976); Morton v. Mancari, 417 U. S. 535 (1974). But the Trust reads Williams too broadly. Although we decided that § 1346(a)(1) authorizes a tax-refund claim by a third party whose property was subjected to an allegedly wrongful tax lien, we so held on the specific understanding that no other remedy, not even a timely claim under § 7426(a)(1), was open to the plaintiff in that case. See Williams, supra, at 536-538. Here, on the contrary, the Trust challenges a levy, not a lien, and could have made a timely claim under § 7426(a)(1) for the relief it now seeks under § 1346(a)(1). And even if the canon against implied repeals applied here, the Trust still could not prevail. We simply cannot reconcile the 9-month limitations period for a wrongful levy claim under § 7426(a)(1) with the notion that the same challenge would be open under § 1346(a)(1) for up to four years. See Posadas v. National City Bank, 296 U. S. 497, 503 (1936) (“[W]here provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one”). On this point, the Trust proposes that the two statutory schemes can be “harmonized” by construing the deadline for filing § 7426(a)(1) claims to cover only those actions seeking “pre:deprivation” remedies unavailable under § 1346(a)(1). See Reply Brief for Petitioner 6. But this reading would violate the clear text of § 7426(a)(1), which on its face applies to predeprivation and postdeprivation claims alike. See 26 U. S. C. § 7426(a)(1) (“Such action may be brought without regard to whether such property has been surrendered to or sold by the Secretary”). * * * The Trust missed the deadline for challenging a levy under § 7426(a)(1), and may not bring the challenge as a tax-refund claim under § 1346(a)(1). The judgment of the Court of Appeals is accordingly affirmed. It is so ordered. This period can be extended for up to 12 months if the third party makes an administrative request for the return of the property wrongfully levied upon. See 26 U. S. C. § 6532(c)(2). Title 28 U. S. C. § 1346(a)(1) gives district courts “jurisdiction, concurrent with the United States Court of Federal Claims,” over “[a]ny civil action against the United States for the recovery of,” among other things, “any internal-revenue tax alleged to have been erroneously or illegally assessed or collected.” A taxpayer may bring such an action within two years after the IRS disallows the taxpayer’s administrative refund claim. See 26 U. S. C. §§6532(a)(lM2); see also § 7422(a) (requiring a taxpayer to file the administrative claim before seeking a refund in court). An administrative refund claim must, in turn, be filed within two years from the date the tax was paid or three years from the time the tax return was filed, whichever is later. See § 6511(a). The District Court declined to dismiss the Trust’s claim on res judicata grounds, and the Government does not argue claim or issue preclusion in this Court, see Brief for United States 5, n. 2. It has been commonly understood that Williams did not extend § 1346(a)(1) to parties in the Trust’s position. See 434 P. 3d 807, 810 (CA5 2006) (case below) (“To construe Williams to allow an alternative remedy under § 1346, with its longer statute of limitations period, would undermine the surety provided by the clear avenue to recovery under § 7426” (citation omitted)); Dahn v. United States, 127 P. 3d 1249, 1253 (CA10 1997) (“[T)here were no tax levies involved in [Williams], Thus, the Court was concerned solely with the reach of § 1346 per se; the exclusivity of a concurrent § 7426 claim was never in issue. Indeed, the Court specifically emphasized the inapplicability of § 7426 (or any other meaningful remedy) to reinforce its broad reading of §1346”); WWSM Investors v. United States, 64 F. 3d 456, 459 (CA9 1995) (Brunetti, J., dissenting) (“The Supreme Court recognized Williams as a refund, not a wrongful levy, case, and [did not] even hint that §7426 was not the exclusive remedy for a claimed wrongful levy”); Rev. Rui. 2005-49, 2005-2 Cum. Bull. 126 (“The rationale in Williams is inapplicable to wrongful levy suits because Congress created an exclusive remedy under section 7426 for third persons claiming an interest in property levied upon by the [IRS]”); but see WWSM Investors, supra, at 459 (majority opinion) (“[S]eizing money from WWSM’s bank account is functionally equivalent to what the IRS did in Williams — placing a lien on property in escrow under circumstances which compelled Mrs. Williams to pay the IRS and discharge the lien”).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
CONNELL v. HIGGINBOTHAM et al. No. 79. Argued November 19, 1970 Decided June 7, 1971 Sanford Jay Rosen argued the cause for appellant. With him on the brief were Tobias Simon and Melvin L. Wulf. Stephen Marc Slepin argued the cause for appellees. With him on the brief were Rivers Buford, Jr., and James W. Market. Per Curiam. This is an appeal from an action commenced in the United States District Court for the Middle District of Florida challenging the constitutionality of §§ 876.05-876.10 of Fla. Stat. (1965), and the various loyalty oaths upon which appellant’s employment as a school teacher was conditioned.- The three-judge U. S. District Court declared three of the five clauses contained in the oaths to be unconstitutional, and enjoined the State from conditioning employment on the taking of an oath including the language declared unconstitutional. The appeal is from that portion of -the District Court decision which upheld the remaining two clauses in the oath: I do hereby solemnly swear or affirm (1) “that I will support the Constitution of the United States and of the State of Florida”; and (2) “that I do not believe in the overthrow ' of the Government of- the United States or of the State of Florida by force or violence.” On January 16, 1969, appellant made application for a teaching position with the Orange County school system. She was interviewed by the principal of Callahan Elementary School, and on January 27, 1969, appellant was employed as a substitute classroom teacher in the fourth grade of that school. Appellant was dismissed from her teaching position on March 18, 1969, for refusing to sign the loyalty oath required of all Florida public employees, Fla. Stat. § 876.05. The first' section of the oath upheld by the District Court, requiring all applicants to pledge to support the Constitution of the United States and of the State of Florida, demands no more of Florida public employees than is required of all state and federal officers. U. S. Const., Art, VI, cl. 3. The validity of this section of the oath would appear settled. See Knight v. Board of Regents, 269 F. Supp. 339 (1967), aff’d per curiam, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (1967), aff’d per curiam, 390 U. S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (1969), aff’d per curiam, 397 U. S. 317 (1970). The second portion of the oath, approved by the District Court, falls within the ambit of decisions of this Coúrt proscribing summary dismissal from public employment without hearing or inquiry required by due process. Slochower v. Board of Education, 350 U. S. 551 (1956). Cf. Nostrand v. Little, 362 U. S. 474 (1960); Speiser v. Randall, 357 U. S. 513 (1958). /That portion of the oath, therefore, cannot stand. Affirmed in part, and reversed in part. The clauses declared unconstitutional by the court below required the employee to swear: (a) “that I am not a member of the Communist Party”; (b) “that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party”; and (c) “that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.”	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
SIMON & SCHUSTER, INC. v. MEMBERS OF THE NEW YORK STATE CRIME VICTIMS BOARD et al. No. 90-1059. Argued October 15, 1991 Decided December 10, 1991 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, Scalia, and Souter, JJ., joined. Blackmun, J., post, p. 123, and Kennedy, J., post, p. 124, filed opinions concurring in the judgment. Thomas, J., took no part in the consideration or decision of the case. Ronald S. Rauchberg argued the cause for petitioner. With him on the briefs were Charles S. Sims and Mark C. Morril. Howard L. Zwickel, Assistant Attorney General of New York, argued the cause for respondents. With him on the brief were Robert Abrams, Attorney General, 0. Peter Sherwood, Solicitor General, and Susan L. Watson, Assistant Attorney General. Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Leon Friedman, Steven R. Shapiro, John A. Powell, and Arthur N. Eisenberg; for the Association of American Publishers, Inc., by R. Bruce Rich; and for the Motion Picture Association of America, Inc., by Richard M. Cooper, David E. Kendall, and Walter J. Josiah, Jr. Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Louis F. Hubener and Charles A. Finkel, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Charles E. Cole of Alaska, Daniel E. Lungren of California, Gale E. Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Michael J. Bowers of Georgia, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, William L. Webster of Missouri, Marc Racicot of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John P. Arnold of New Hampshire, Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North Carolina, Lee Fisher of Ohio, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, and Joseph B. Meyer of Wyoming; and for the Council of State Governments et al. by Richard Ruda and Randal S. Milch. Briefs of amici curiae were filed for the United States by Solicitor General Starr, Assistant Attorneys General Gerson and Mueller, Deputy Solicitor General Shapiro, and Ronald J. Mann; for the Crime Victims Legal Clinic by Judith Rowland; for the National Organization for Victim Assistance et al. by Charles G. Brown III; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Richard A Samp, and Jonathan K. Van Patten. Justice O’Connor delivered the opinion of the Court. New York’s “Son of Sam” law requires that an accused or convicted criminal’s income from works describing his crime be deposited in an escrow account. These funds are then made available to the victims of the crime and the criminal’s other creditors. We consider whether this statute is consistent with the First Amendment. I A In the summer of 1977, New York was terrorized by a serial killer popularly known as the Son of Sam. The hunt for the Son of Sam received considerable publicity, and by the time David Berkowitz was identified as the killer and apprehended, the rights to his story were worth a substantial amount. Berkowitz’s chance to profit from his notoriety while his victims and their families remained uncompensated did not escape the notice of New York’s Legislature. The State quickly enacted the statute at issue, N. Y. Exec. Law § 632-a (McKinney 1982 and Supp. 1991). The statute was intended to “ensure that monies received by the criminal under such circumstances shall first be made available to recompense the victims of that crime for their loss and suffering.” Assembly Bill Memorandum Re: A 9019, July 22,1977, reprinted in Legislative Bill Jacket, 1977 N. Y. Laws, ch. 823. As the author of the statute explained: “It is abhorrent to one’s sense of justice and decency that an individual... can expect to receive large sums of money for his story once he is captured — while five people are dead, [and] other people were injured as a result of his conduct.” Memorandum of Sen. Emanuel R. Gold, reprinted in New York State Legislative Annual, 1977, p. 267. The Son of Sam law, as later amended, requires any entity contracting with an accused or convicted person for a depiction of the crime to submit a copy of the contract to respondent New York State Crime Victims Board (Board), and to turn over any income under that contract to the Board. This requirement applies to all such contracts in any medium of communication: “Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused or convicted person’s thoughts, feelings, opinions or emotions regarding such crime, shall submit a copy of such contract to the board and pay over to the board any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives.” N. Y. Exec. Law §632-a(l) (McKinney 1982). The Board is then required to deposit the payment in an escrow account “for the benefit of and payable to any victim... provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such [accused or convicted] person or his representatives.” Ibid. After five years, if no actions are pending, “the board shall immediately pay over any moneys in the escrow account to such person or his legal representatives.” §632-a(4). This 5-year period in which to bring a civil action against the convicted person begins to run when the escrow account is established, and supersedes any limitations period that expires earlier. § 632-a(7). Subsection (8) grants priority to two classes of claims against the escrow account. First, upon a court order, the Board must release assets “for the exclusive purpose of retaining legal representation.” §632-a(8). In addition, the Board has the discretion, after giving notice to the victims of the crime, to “make payments from the escrow account to a representative of any person accused or convicted of a crime for the necessary expenses of the production of the moneys paid into the escrow account.” Ibid. This provision permits payments to literary agents and other such representatives. Payments under subsection (8) may not exceed one-fifth of the amount collected in the account. Ibid. Claims against the account are given the following priorities: (a) payments ordered by the Board under subsection (8); (b) subrogation claims of the State for payments made to victims of the crime; (c) civil judgments obtained by victims of the crime; and (d) claims of other creditors of the accused or convicted person, including state and local tax authorities. N. Y. Exec. Law §632-a(ll) (McKinney Supp. 1991). Subsection (10) broadly defines “person convicted of a crime” to include “any person convicted of a crime in this state either by entry of a plea of guilty or by conviction after trial and any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted.” § 632-a(10)(b) (emphasis added). Thus a person who has never been accused or convicted of a crime in the ordinary sense, but who admits in a book or other work to having committed a crime, is within the statute’s coverage. As recently construed by the New York Court of Appeals, however, the statute does not apply to victimless crimes. Children of Bedford, Inc. v. Petromelis, 77 N. Y. 2d 713, 726, 673 N. E. 2d 541, 648 (1991). The Son of Sam law supplements pre-existing statutory-schemes authorizing the Board to compensate crime victims for their losses, see N. Y. Exec. Law §631 (McKinney 1982 and Supp. 1991), permitting courts to order the proceeds of crime forfeited to the State, see N. Y. Civ. Prac. Law §§ 1310-1352 (McKinney Supp. 1991), providing for orders of restitution at sentencing, N. Y. Penal Law § 60.27 (McKinney 1987), and affording prejudgment attachment procedures to ensure that wrongdoers do not dissipate their assets, N. Y. Civ. Prac. Law §§ 6201-6226 (McKinney 1980 and Supp. 1991). The escrow arrangement established by the Son of Sam law enhances these provisions only insofar as the accused or convicted person earns income within the scope of §632-a(l). Since its enactment in 1977, the Son of Sam law has been invoked only a handful of times. As might be expected, the individuals whose profits the Board has sought to escrow have all become well known for having committed highly publicized crimes. These include Jean Harris, the convicted killer of “Scarsdale Diet” Doctor Herman Tarnower; Mark David Chapman, the man convicted of assassinating John Lennon; and R. Foster Winans, the former Wall Street Journal columnist convicted of insider trading. Ironically, the statute was never applied to the Son of Sam himself; David Berkowitz was found incompetent to stand trial, and the statute at that time applied only to criminals who had actually been convicted. N. Y. Times, Feb. 20,1991, p. B8, col. 4. According to the Board, Berkowitz voluntarily paid his share of the royalties from the book Son of Sam, published in 1981, to his victims or their estates. Brief for Respondents 8, n. 13. This case began in 1986, when the Board first became aware of the contract between petitioner Simon & Schuster and admitted organized crime figure Henry Hill. B Looking back from the safety of the Federal Witness Protection Program, Henry Hill recalled: “At the age of twelve my ambition was to be a gangster. To be a wiseguy. To me being a wiseguy was better than being president of the United States.” N. Pileggi, Wiseguy: Life in a Mafia Family 19 (1985) (hereinafter Wiseguy). Whatever one might think of Hill, at the very least it can be said that he realized his dreams. After a career spanning 25 years, Hill admitted engineering some of the most daring crimes of his day, including the 1978-1979 Boston College basketball point-shaving scandal, and the theft of $6 million from Lufthansa Airlines in 1978, the largest successful cash robbery in American history. Wiseguy 9. Most of Hill’s crimes were more banausic: He committed extortion, he imported and distributed narcotics, and he organized numerous robberies. Hill was arrested in 1980. In exchange for immunity from prosecution, he testified against many of his former colleagues. Since his arrest, he has lived under an assumed name in an unknown part of the country. In August 1981, Hill entered into a contract with author Nicholas Pileggi for the production of a book about Hill’s life. The following month, Hill and Pileggi signed a publishing agreement with Simon & Schuster, Inc. Under the agreement, Simon & Schuster agreed to make payments to both Hill and Pileggi. Over the next few years, according to Pi-leggi, he and Hill “talked at length virtually every single day, with not more than an occasional Sunday or holiday skipped. We spent more than three hundred hours together; my notes of conversations with Henry occupy more than six linear file feet.” App. 27. Because producing the book required such a substantial investment of time and effort, Hill sought compensation. Ibid. The result of Hill and Pileggi’s collaboration was Wiseguy, which was published in January 1986. The book depicts, in colorful detail, the day-to-day existence of organized crime, primarily in Hill’s first-person narrative. Throughout Wiseguy, Hill frankly admits to having participated in an astonishing variety of crimes. He discusses, among other things, his conviction of extortion and the prison sentence he served. In one portion of the book, Hill recounts how meihbers of the Mafia received preferential treatment in prison: “The dorm was a separate three-story building outside the wall, which looked more like a Holiday Inn than a prison. There were four guys to a room, and we had comfortable beds and private baths. There were two dozen rooms on each floor, and each of them had mob guys living in them. It was like a wiseguy convention — the whole Gotti crew, Jimmy Doyle and his guys, ‘Ernie Boy’ Abbamonte and ‘Joe Crow’ Delvecchio, Vin-nie Aloi, Frank Cotroni. “It was wild. There was wine and booze, and it was kept in bath-oil or after-shave jars. The hacks in the honor dorm were almost all on the take, and even though it was against the rules, we used to cook in our rooms. Looking back, I don’t think Paulie went to the general mess five times in the two and a half years he was there. We had a stove and pots and pans and silverware stacked in the bathroom. We had glasses and an ice-water cooler where we kept the fresh meats and cheeses. When there was an inspection, we stored the stuff in the false ceiling, and once in a while, if it was confiscated, we’d just go to the kitchen and get new stuff. “We had the best food smuggled into our dorm from the kitchen. Steaks, veal cutlets, shrimp, red snapper. Whatever the hacks could buy, we ate. It cost me two, three hundred a week. Guys like Paulie spent five hundred to a thousand bucks a week. Scotch cost thirty dollars a pint. The hacks used to bring it inside the walls in their lunch pails. We never ran out of booze, because we had six hacks bringing it in six days a week. Depending on what you wanted and how much you were willing to spend, life could be almost bearable.” Wiseguy 150-151. Wiseguy was reviewed favorably: The Washington Post called it an “‘amply detailed and entirely fascinating book that amounts to a piece of revisionist history/” while New York Daily News columnist Jimmy Breslin named it “ ‘the best book on crime in America ever written.’” App. 5. The book was also a commercial success: Within 19 months of its publication, more than a million copies were in print. A few years later, the book was converted into a film called Goodfellas, which won a host of awards as the best film of 1990. From Henry Hill’s perspective, however, the publicity generated by the book’s success proved less desirable. The Crime Victims Board learned of Wiseguy in January 1986, soon after it was published. C On January 31, the Board notified Simon & Schuster: “It has come to our attention that you may have contracted with a person accused or convicted of a crime for the payment of monies to such person.” App. 86. The Board ordered Simon & Schuster to furnish copies of any contracts it had entered into with Hill, to provide the dollar amounts and dates of all payments it had made to Hill, and to suspend all payments to Hill in the future. Simon & Schuster complied with this order. By that time, Simon & Schuster had paid Hill’s literary agent $96,250 in advances and royalties on Hill’s behalf, and- was holding $27,958 for eventual payment to Hill. The Board reviewed the book and the contract, and on May 21, 1987, issued a proposed determination and order. The Board determined that Wiseguy was covered by § 632-a of the Executive Law, that Simon & Schuster had violated the law by failing to turn over its contract with Hill to the Board and by making payments to Hill, and that all money owed to Hill under the contract had to be turned over to the Board to be held in escrow for the victims of Hill’s crimes. The Board ordered Hill to turn over the payments he had already received, and ordered Simon & Schuster to turn over all money payable to Hill at the time or in the future. Simon & Schuster brought suit in August 1987, under 42 U. S. C. § 1983, seeking a declaration that the Son of Sam law violates the First Amendment and an injunction barring the statute’s enforcement. After the parties filed cross-motions for summary judgment, the District Court found the statute to be consistent with the First Amendment. 724 F. Supp. 170 (SDNY 1989). A divided Court of Appeals affirmed. Simon & Schuster, Inc. v. Fischetti, 916 F. 2d 777 (CA2 1990). Because the Federal Government and most of the States have enacted statutes with similar objectives, see 18 U. S. C. § 3681; Note, Simon & Schuster, Inc. v. Fischetti: Can New York’s Son of Sam Law Survive First Amendment Challenge?, 66 Notre Dame L. Rev. 1075, n. 6 (1991) (listing state statutes), the issue is significant and likely to recur. We accordingly granted certiorari, 498 U. S. 1081 (1991), and we now reverse. II A A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech. Leathers v. Medlock, 499 U. S. 439, 447 (1991). As we emphasized in invalidating a content-based magazine tax: “[0]fficial scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987). This is a notion so engrained in our First Amendment jurisprudence that last Term we found it so “obvious” as to not require explanation. Leathers, supra, at 447. It is but one manifestation of a far broader principle: “Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984). See also Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972), In the context of financial regulation, it bears repeating, as we did in Leathers, that the government’s ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace. 499 U. S., at 448-449. The First Amendment presumptively places this sort of discrimination beyond the power of the government. As we reiterated in Leathers: “ ‘The constitutional right of free expression is... intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us... in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.’” Id., at 448-449 (quoting Cohen v. California, 403 U. S. 15, 24 (1971)). The Son of Sam law is such a content-based statute. It singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content. Whether the First Amendment “speaker” is considered to be Henry Hill, whose income the statute places in escrow because of the story he has told, or Simon & Schuster, which can publish books about crime with the assistance of only those criminals willing to forgo remuneration for at least five years, the statute plainly imposes a financial disincentive only on speech of a particular content. The Board tries unsuccessfully to distinguish the Son of Sam law from the discriminatory tax at issue in Arkansas Writers’ Project. While the Son of Sam law escrows all of the speaker’s speech-derived income for at least five years, rather than taxing a percentage of it outright, this difference can hardly serve as the basis for disparate treatment under the First Amendment. Both forms of financial burden operate as disincentives to speak; indeed, in many cases it will be impossible to discern in advance which type of regulation will be more costly to the speaker. The Board next argues that discriminatory financial treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas. This assertion is incorrect; our cases have consistently held that “[ijllicit legislative intent is not the sine qua non of a violation of the First Amendment.” Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 592 (1983). Simon & Schuster need adduce “no evidence of an improper censorial motive.” Arkansas Writers’ Project, supra, at 228. As we concluded in Minneapolis Star: “We have long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.” 460 U. S., at 592. Finally, the Board claims that even if the First Amendment prohibits content-based financial regulation specifically of the media, the Son of Sam law is different, because it imposes a general burden on any “entity” contracting with a convicted person to transmit that person’s speech. Cf. Cohen v. Cowles Media Co., 501 U. S. 663, 670 (1991) (“[E]n-forcement of... general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations”). This argument falters on both semantic and constitutional grounds. Any “entity” that enters into such a contract becomes by definition a medium of communication, if it was not one already.. In any event, the characterization of an entity as a member of the “media” is irrelevant for these purposes. The government’s power to impose content-based financial disincentives on speech surely does not vary with the identity of the speaker. The Son of Sam law establishes a financial disincentive to create or publish works with a particular content. In order to justify such differential treatment, “the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.” Arkansas Writers’ Project, 481 U. S., at 231. B The Board disclaims, as it must, any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers. See Brief for Respondents 38, n. 38. As we have often had occasion to repeat: “ ‘[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.’” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988) (quoting FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978)). “ Tf there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’” United States v. Eichman, 496 U. S. 310, 319 (1990) (quoting Texas v. Johnson, 491 U. S. 397, 414 (1989)). The Board thus does not assert any interest in limiting whatever anguish Henry Hill’s victims may suffer from reliving their victimization. There can be little doubt, on the other hand, that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them. Every State has a body of tort law serving exactly this interest. The State’s interest in preventing wrongdoers from dissipating their assets before victims can recover explains the existence of the State’s statutory provisions for prejudgment remedies and orders of restitution. See N. Y. Civ. Prac. Law §§ 6201— 6226 (McKinney 1980 and Supp. 1991); N. Y. Penal Law §60.27 (McKinney 1987). We have recognized the importance of this interest before, in the Sixth Amendment context. See Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 629 (1989). The State likewise has an undisputed compelling interest in ensuring that criminals do not profit from their crimes. Like most if not all States, New York has long recognized the “fundamental equitable principle,” Children of Bedford v. Petromelis, 77 N. Y. 2d, at 727, 573 N. E. 2d, at 548, that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” Riggs v. Palmer, 115 N. Y. 506, 511-512, 22 N. E. 188, 190 (1889). The force of this interest is evidenced by the State’s statutory provisions for the forfeiture of the proceeds and instrumentalities of crime. See N. Y. Civ. Prac. Law §§ 1310-1352 (McKinney Supp. 1991). The parties debate whether book royalties can properly be termed the profits of crime, but that is a question we need not address here. For the purposes of this case, we can assume without deciding that the income escrowed by the Son of Sam law represents the fruits of crime. We need only conclude that the State has a compelling interest in depriving criminals of the profits of their crimes, and in using these funds to compensate victims. The Board attempts to define the State’s interest more narrowly, as “ensuring that criminals do not profit from storytelling about their crimes before their victims have a meaningful opportunity to be compensated for their injuries.” Brief for Respondents 46. Here the Board is on far shakier ground. The Board cannot explain why the State should have any greater interest in compensating victims from the proceeds of such “storytelling” than from any of the criminal’s other assets. Nor can the Board offer any justification for a distinction between this expressive activity and any other activity in connection with its interest in transferring the fruits of crime from criminals to their victims. Thus even if the State can be said to have an interest in classifying a criminal’s assets in this manner, that interest is hardly compelling. We have rejected similar assertions of a compelling interest in the past. In Arkansas Writers’ Project and Minneapolis Star, we observed that while the State certainly has an important interest in raising revenue through taxation, that interest hardly justified selective taxation of the press, as it was completely unrelated to a press/nonpress distinction. Arkansas Writers’ Project, supra, at 231; Minneapolis Star, 460 U. S., at 586. Likewise, in Carey v. Brown, 447 U. S. 455, 467-469 (1980), we recognized the State’s interest in preserving privacy by prohibiting residential picketing, but refused to permit the State to ban only nonlabor picketing. This was because “nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy.” Id., at 465. Much the same is true here. The distinction drawn by the Son of Sam law has nothing to do with the State’s interest in transferring the proceeds of crime from criminals to their victims. Like the government entities in the above cases, the Board has taken the effect of the statute and posited that effect as the State’s interest. If accepted, this sort of circular defense can sidestep judicial review of almost any statute, because it makes all statutes look narrowly tailored. As Judge Newman pointed out in his dissent from the opinion of the Court of Appeals, such an argument “eliminates the entire inquiry concerning the validity of content-based dis-criminations. Every content-based discrimination could be upheld by simply observing that the state is anxious to regulate the designated category of speech.” 916 F. 2d, at 785. In short, the State has a compelling interest in compensating victims from the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime. We must therefore determine whether the Son of Sam law is narrowly tailored to advance the former, not the latter, objective. C As a means of ensuring that victims are compensated from the proceeds of crime, the Son of Sam law is significantly overinclusive. As counsel for the Board conceded at oral argument, the statute applies to works on any subject, provided that they express the author’s thoughts or recollections about his crime, however tangentially or incidentally. See Tr. of Oral Arg. 30, 38; see also App. 109. In addition, the statute’s broad definition of “person convicted of a crime” enables the Board to escrow the income of any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted. § 632-a(10)(b). These two provisions combine to encompass a potentially very large number of works. Had the Son of Sam law been in effect at the time and place of publication, it would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
IRON ARROW HONOR SOCIETY et al. v. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. No. 83-118. Decided November 14, 1983 Per Curiam. Petitioner Iron Arrow Honor Society is an all-male honorary organization founded by the first president of the University of Miami to honor outstanding University men. Traditionally, the Society has conducted its initiation ceremony on a “tapping” mound outside the student union building on University property. In 1972 Congress enacted § 901(a) of Title IX of the Education Amendments, 86 Stat. 373, 20 U. S. C. § 1681(a), and in 1974 the Department of Health, Education, and Welfare promulgated regulations implementing the statute. Regulation 86.31(b)(7) provides that “a recipient [of federal funds] shall not, on the basis of sex; ... (7) [a]id or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees.” 45 CFR § 86.31(b)(7) (1975) (emphasis added) (recodified at 34 CFR § 106.31(b)(7) (1982)). In 1976 the Secretary notified the University’s president of its determination that the University was rendering “significant assistance” within the meaning of the regulation to Iron Arrow. The University advised the Secretary that it wished to comply with Title IX, but asked for time to negotiate with Iron Arrow about changing its membership policy; the Secretary agreed, but only upon the condition that the University ban the “tapping” ceremony on campus until the question was resolved. The University thereafter prohibited the “tapping” ceremony, and Iron Arrow responded by suing the Secretary in the United States District Court for the Southern District of Florida. It sought declaratory and injunctive relief to prevent the Secretary from interpreting Regulation 86.31(b)(7) so as to require the University to ban Iron Arrow’s activities from campus. The District Court held that Iron Arrow had no standing to challenge the Secretary’s action and the regulations, but this determination was reversed by the Court of Appeals for the Fifth Circuit. Iron Arrow Honor Society v. Calif ano, 597 F. 2d 590, 591 (1979). The District Court then granted summary judgment for the Secretary, Iron Arrow Honor Society v. Hustedler, 499 F. Supp. 496 (1980), and the Court of Appeals for the Fifth Circuit affirmed. Iron Arrow Honor Society v. Schweiker, 652 F. 2d 445 (1981). We granted Iron Arrow’s petition for certiorari, vacated the decision of the Court of Appeals for the Fifth Circuit, and remanded for further consideration in light of North Haven Board of Education v. Bell, 456 U. S. 512 (1982). Iron Arrow Honor Society v. Schweiker, 458 U. S. 1102 (1982). On remand the Court of Appeals for the Fifth Circuit again affirmed with one judge dissenting. 702 F. 2d 549 (1983). After our remand but before the decision of the Court of Appeals for the Fifth Circuit, the president of the University wrote a letter to the chief of Iron Arrow. It stated the University’s unequivocal position that Iron Arrow cannot return to campus as a University organization nor conduct its activities on campus until it discontinues its discriminatory membership policy. Letter from Edward T. Foote II to C. Rhea Warren (Sept. 23, 1982), reprinted in App. to Brief for Federal Respondents, la-4a. The Trustee Executive Committee had adopted that position on July 15, 1980, determining that Iron Arrow may return to campus only if it satisfies the code for all student organizations, a code which includes a policy of nondiscrimination. The president’s letter moreover informed Iron Arrow that the University would maintain that position, regardless of the outcome of Iron Arrow’s lawsuit. Specifically the letter stated: “The question is not only what the law requires. The most important question is what our University should do, in fairness to all students, whether the law requires it or not. “To avoid any ambiguity that might be present because of the passage of time or change of University administrations, I have instructed counsel for the University to inform the Courts of the University’s policy.” Id., at 2a-4a (emphasis in original). The president further informed Iron Arrow that he was making the letter public and that he was sending a copy to all of Iron Arrow’s undergraduate members. Id., at 4a. Both before the Court of Appeals for the Fifth Circuit and now before this Court in the Secretary’s response to Iron Arrow’s latest petition for certiorari, the Secretary has argued that that letter renders the case moot. For the reasons which follow, we agree that the case has become moot during the pendency of this litigation. Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies. DeFunis v. Odegaard, 416 U. S. 312, 316 (1974). To satisfy the Art. Ill case-or-controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 38 (1976). We think that no resolution of the present dispute between these parties can redress Iron Arrow’s asserted grievance. Whatever the correctness of the Secretary’s interpretation of the regulation in question, the University has stated unequivocally that it will not allow Iron Arrow to conduct its initiation activities on University property as long as it refuses to admit women. Thus the dispute as to how the regulation should be interpreted, or the extent to which it faithfully implements the statute, is classically “moot.” It is the action of the University, not that of the Secretary, which excludes Iron Arrow. The Court of Appeals concluded by a divided vote that the case was not moot because it could still grant some relief to Iron Arrow. 702 F. 2d, at 552. It stated that the Secretary could still require the University to take other steps to comply with Title IX in addition to banning Iron Arrow from campus. For example, it could require the University to abolish all historical ties with Iron Arrow, refuse to allow Iron Arrow to use the University’s name, etc. Ibid. The court concluded that if it decided in Iron Arrow’s favor,. it could issue an injunction which “would serve to insulate the plaintiffs from all of these appropriate additional enforcement actions.” Ibid. Whether or not these would be “appropriate additional enforcement actions,” neither we nor the Court of Appeals need decide, since the Secretary is not requesting the University to take such additional steps, see Brief for Federal Respondents 13, and Iron Arrow has not sought in this lawsuit to prevent the University from doing so. Future positions taken by the parties might bring such issues into controversy, but that possibility is simply too remote from the present controversy to keep this case alive. See Golden v. Zwickler, 394 U. S. 103, 109 (1969). In rejecting the Secretary’s argument that the case is moot, the Court of Appeals also relied on a line of cases from this Court supporting the proposition that the “ ‘[voluntary discontinuance of an alleged illegal activity does not operate to remove a case from the ambit of judicial power.’ ” 702 F. 2d, at 553 (quoting Walling v. Helmerich & Payne, 323 U. S. 37, 43 (1944)). As the dissent noted, however, most of those cases discuss whether voluntary discontinuance of challenged activities by a defendant moots a lawsuit. 702 F. 2d, at 565, 567 (Roney, J., dissenting). But see St. Paul Fire & Marine Insurance Co. v. Barry, 438 U. S. 531, 537-538 (1978) (involving subsequent acts of a third party). Defendants face a heavy burden to establish mootness in such cases because otherwise they would simply be free to “return to [their] old ways” after the threat of a lawsuit had passed. United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). Thus they must establish that “there is no reasonable likelihood that the wrong will be repeated.” Id., at 633 (citation omitted). This case, however, concerns the effect of the voluntary acts of a third-party nondefendant. It is not the typical case where it could be argued that the University has taken its position only in order to escape the threat of an injunction. Indeed, Iron Arrow does not challenge the University’s conduct in this lawsuit. Assuming that the “voluntary discontinuance” line of cases nonetheless applies to this different situation, the letter from the president expresses the University’s voluntary and unequivocal intention to exclude Iron Arrow’s activities from campus. Because the University has announced its decision to Iron Arrow, the public, and the courts, we conclude that there is “no reasonable likelihood” that the University will later change its mind and decide to invite Iron Arrow to return. Because of the position that the University has taken irrespective of the outcome of this lawsuit, we conclude that the case is moot and that the Court of Appeals had no jurisdiction to decide it. Accordingly, we grant the petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand to that court for entry of an appropriate order directing the District Court to dismiss the action as moot. See County of Los Angeles v. Davis, 440 U. S. 625, 634 (1979); United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950). It is so ordered. Justice Marshall and Justice Blackmun would deny certiorari. Iron Arrow also appears to have sought a declaration of its rights under Regulation 86.31(b)(7) pursuant to 28 U. S. C. § 2201. Iron Arrow Honor Society v. Hustedler, 499 F. Supp. 496, 499 (SD Fla. 1980). It, however, has no standing under that section to seek a generalized declaration of its rights against future actions of the Secretary. See Public Service Comm’n v. WycoffCo., 344 U. S. 237, 241-249 (1952). The University is not a named defendant in this action. The District Court did, however, join the University as an indispensable party under Federal Rule of Civil Procedure 19 in order to assure that the court could award adequate relief to Iron Arrow if it prevailed. 499 F. Supp., at 499.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 62 ]	sc_adminaction
SCHOOL BOARD OF NASSAU COUNTY, FLORIDA, et al. v. ARLINE No. 85-1277. Argued December 3, 1986 Decided March 3, 1987 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 289. Brian T. Hayes argued the cause for petitioners. With him on the briefs was John D. Carlson. Solicitor General Fried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Richard J. Lazarus, and Mark L. Gross. George K. Rahdert argued the cause for respondent. With him on the brief was Steven H. Malone. Briefs of amici curiae urging reversal were filed for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; and for Congressman William E. Dannemeyer et al. by William E. Dannemeyer, pro se. Briefs of amici curiae urging affirmance were filed for the Association for Retarded Citizens of the United States et al. by Thomas K. Gilhool, Michael Churchill, Frank J. Laski, Timothy M. Cook, Stanley S. Herr, and Donald S. Goldman; and for the Employment Law Center et al. by Robert E. Borton. Briefs of amici curiae were filed for the State of California et al. by John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Marian M. Johnston and M. Anne Jennings, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, W. Cary Edwards of New Jersey, Robert Abrams of New York, and Bronson C. La Follette of Wisconsin; for the American Medical Association by Benjamin W. Heineman, Jr., and Carter G. Phillips; for the American Public Health Association et al. by Nan D. Hunter and Herbert Semmel; for Doctors for AIDS Research and Education by Stanley Fleishman, Joseph Lawrence, Susan D. McGreivy, and Paul Hoffman; for the Epilepsy Foundation of America by Alexandra K. Finucane; for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon; and for Senator Cranston et al. by Arlene Mayerson. Justice Brennan delivered the opinion of the Court. Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. §794 (Act), prohibits a federally-funded state program from discriminating against a handicapped individual solely by reason of his or her handicap. This case presents the questions whether a person afflicted with tuberculosis, a contagious disease, may be considered a “handicapped individual” within the meaning of § 504 of the Act, and, if so, whether such an individual is “otherwise qualified” to teach elementary school. H From 1966 until 1979, respondent Gene Arline taught elementary school in Nassau County, Florida. She was discharged in 1979 after suffering a third relapse of tuberculosis within two years. After she was denied relief in state administrative proceedings, she brought suit in federal court, alleging that the school board’s decision to dismiss her because of her tuberculosis violated §504 of the Act. A trial was held in the District Court, at which the principal medical evidence was provided by Marianne McEuen, M.D., an assistant director of the Community Tuberculosis Control Service of the Florida Department of Health and Rehabilitative Services. According to the medical records reviewed by Dr. McEuen, Arline was hospitalized for tuberculosis in 1957. App. 11-12. For the next 20 years, Arline’s disease was in remission. Id., at 32. Then, in 1977, a culture revealed that tuberculosis was again active in her system; cultures taken in March 1978 and in November 1978 were also positive. Id., at 12. The superintendent of schools for Nassau County, Craig Marsh, then testified as to the school board’s response to Arline’s medical reports. After both her second relapse, in the spring of 1978, and her third relapse in November 1978, the school board suspended Arline with pay for the remainder of the school year. Id., at 49-51. At the end of the 1978-1979 school year, the school board held a hearing, after which it discharged Arline, “not because she had done anything wrong,” but because of the “continued reoccurence [sic] of tuberculosis.” Id., at 49-52. In her trial memorandum, Arline argued that it was “not disputed that the [school board dismissed her] solely on the basis of her illness. Since the illness in this case qualifies the Plaintiff as a ‘handicapped person’ it is clear that she was dismissed solely as a result of her handicap in violation of Section 504.” Record 119. The District Court held, however, that although there was “[n]o question that she suffers a handicap,” Arline was nevertheless not “a handicapped person under the terms of that statute.” App. to Pet. for Cert. C-2. The court found it “difficult... to conceive that Congress intended contagious diseases to be included within the definition of a handicapped person.” The court then went on to state that, “even assuming” that a person with a contagious disease could be deemed a handicapped person, Arline was not “qualified” to teach elementary school. Id., at C-2-C-3. The Court of Appeals reversed, holding that “persons with contagious diseases are within the coverage of section 504,” and that Arline’s condition “falls... neatly within the statutory and regulatory framework” of the Act. 772 F. 2d 759, 764 (CA11 1985). The court remanded the case “for further findings as to whether the risks of infection precluded Mrs. Arline from being ‘otherwise qualified’ for her job and, if so, whether it was possible to make some reasonable accommodation for her in that teaching position” or in some other position. Id., at 765 (footnote omitted). We granted certiorari, 475 U. S. 1118 (1986), and now affirm. I — I 1 — 1 In enacting and amending the Act, Congress enlisted all programs receiving federal funds in an effort “to share with handicapped Americans the opportunities for an education, transportation, housing, health care, and jobs that other Americans take for granted.” 123 Cong. Rec. 13515 (1977) (statement of Sen. Humphrey). To that end, Congress not only increased federal support for vocational rehabilitation, but also addressed the broader problem of discrimination against the handicapped by including § 504, an antidiscrimi-nation provision patterned after Title VI of the Civil Rights Act of 1964. Section 504 of the Rehabilitation Act reads in pertinent part: “No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance... 29 U. S. C. §794. In 1974 Congress expanded the definition of “handicapped individual” for use in §504 to read as follows: “[A]ny person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” 29 U. S. C. § 706(7)(B). The amended definition reflected Congress’ concern with protecting the handicapped against discrimination stemming not only from simple prejudice, but also from “archaic attitudes and laws” and from “the fact that the American people are simply unfamiliar with and insensitive to the difficulties confronting] individuals with handicaps.” S. Rep. No. 93-1297, p. 50 (1974). To combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped, Congress expanded the definition of “handicapped individual” so as to preclude discrimination against “[a] person who has a record of, or is regarded as having, an impairment, [but who] may at present have no actual incapacity at all.” Southeastern Community College v. Davis, 442 U. S. 397, 405-406, n. 6 (1979). In determining whether a particular individual is handicapped as defined by the Act, the regulations promulgated by the Department of Health and Human Services are of significant assistance. As we have previously recognized, these regulations were drafted with the oversight and approval of Congress, see Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 634-635, and nn. 14-16 (1984); they provide “an important source of guidance on the meaning of §504.” Alexander v. Choate, 469 U. S. 287, 304, n. 24 (1985). The regulations are particularly significant here because they define two critical terms used in the statutory definition of handicapped individual. “Physical impairment” is defined as follows: “[A]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskel-etal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine.” 45 CFR §84.3(j)(2)(i) (1985). In addition, the regulations define “major life activities” as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” §84.3(j)(2)(ii). t — i I — I Within this statutory and regulatory framework, then, we must consider whether Arline can be considered a handicapped individual. According to the testimony of Dr. McEuen, Arline suffered tuberculosis “in an acute form in such a degree that it affected her respiratory system,” and was hospitalized for this condition. App. 11. Arline thus had a physical impairment as that term is defined by the regulations, since she had a “physiological disorder or condition... affecting [her]... respiratory [system].” 45 CFR § 84.3(j)(2)(i) (1985). This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline’s hospitalization for tuberculosis in 1957 suffices to establish that she has a “record of... impairment” within the meaning of 29 U. S. C. § 706(7)(B)(ii), and is therefore a handicapped individual. Petitioners concede that a contagious disease may constitute a handicapping condition to the extent that it leaves a person with “diminished physical or mental capabilities,” Brief for Petitioners 15, and concede that Arline’s hospitalization for tuberculosis in 1957 demonstrates that she has a record of a physical impairment, see Tr. of Oral Arg. 52-53. Petitioners maintain, however, that Arline’s record of impairment is irrelevant in this case, since the school board dismissed Arline not because of her diminished physical capabilities, but because of the threat that her relapses of tuberculosis posed to the health of others. We do not agree with petitioners that, in defining a handicapped individual under § 504, the contagious effects of a disease can be meaningfully distinguished from the disease’s physical effects on a claimant in a case such as this. Arline’s contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment. Nothing in the legislative history of §504 suggests that Congress intended such a result. That history demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual. Congress extended coverage, in 29 U. S. C. § 706(7) (B)(iii), to those individuals who are simply “regarded as having” a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection “a person with some kind of visible physical impairment which in fact does not substantially limit that person’s functioning.” S. Rep. No. 93-1297, at 64. Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment. Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of “handicapped individual” to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of “handicapped individual” is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in fight of medical evidence and a determination made as to whether they were “otherwise qualified.” Rather, they would be vulnerable to discrimination on the basis of mythology — precisely the type of injury Congress sought to prevent. We conclude that the fact that a person with a record of a physical impairment is also contagious does not suffice to remove that person from coverage under §504. > hH The remaining question is whether Arline is otherwise qualified for the job of elementary schoolteacher. To answer this question in most cases, the district court will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks. The basic factors to be considered in conducting this inquiry are well established. In the context of the employment of a person handicapped with a contagious disease, we agree with amicus American Medical Association that this inquiry should include “[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.” Brief for American Medical Association as Amicus Curiae 19. In making these findings, courts normally should defer to the reasonable medical judgments of public health officials. The next step in the “otherwise-qualified” inquiry is for the court to evaluate, in light of these medical findings, whether the employer, could reasonably accommodate the employee under the established standards for that inquiry. See n. 17, supra. Because of the paucity of factual findings by the District Court, we, like the Court of Appeals, are unable at this stage of the proceedings to resolve whether Arline is “otherwise qualified” for her job. The District Court made no findings as to the duration and severity of Arline’s condition, nor as to the probability that she would transmit the disease. Nor did the court determine whether Arline was contagious at the time she was discharged, or whether the School Board could have reasonably accommodated her. Accordingly, the resolution of whether Arline was otherwise qualified requires further findings of fact. y We hold that a person suffering from the contagious disease of tuberculosis can be a handicapped person within the meaning of § 504 of the Rehabilitation Act of 1973, and that respondent Arline is such a person. We remand the case to the District Court to determine whether Arline is otherwise qualified for her position. The judgment of the Court of Appeals is Affirmed. Respondent also sought relief under 42 U. S. C. § 1983, alleging that the board denied her due process of law. Both the District Court and the Court of Appeals rejected this argument, and respondent did not present the issue to this Court. Congress’ decision to pattern § 504 after Title VI is evident in the language of the statute, compare 29 U. S. C. § 794 with 42 U. S. C. § 2000d, and in the legislative history of §504, see, e. g., S. Rep. No. 93-1297, pp. 39-40 (1974); S. Rep. No. 95-890, p. 19 (1978). Cf. TenBroek & Matson, The Disabled and the Law of Welfare, 54 Cal. L. Rev. 809, 814-815, and nn. 21-22 (1966) (discussing theory and evidence that “negative attitudes and practices toward the disabled resemble those commonly attached to ‘underprivileged ethnic and religious minority groups’ ”). The range of programs subject to § 504’s prohibition is broader, however, than that covered by Title VI, because § 504 covers employment discrimination even in programs that receive federal aid with a primary objective other than the promotion of employment. See Consolidated Rail Corporation v. Darrone, 465 U. S. 624 (1984); Note; Accommodating the Handicapped: Rehabilitating Section 504 after Southeastern, 80 Colum. L. Rev. 171, 174-175, and n. 21 (1980). The primary focus of the 1973 Act was to increase federal support for vocational rehabilitation; the Act’s original definition of the term “handicapped individual” reflected this focus by including only those whose disability limited their employability, and those who could be expected to benefit from vocational rehabilitation. After reviewing the Department of Health, Education, and Welfare’s subsequent attempt to devise regulations to implement the Act, however, Congress concluded that the definition of “handicapped individual,” while appropriate for the vocational rehabilitation provisions in Titles I and III of the Act, was too narrow to deal with the range of discriminatory practices in housing, education, and health care programs which stemmed from stereotypical attitudes and ignorance about the handicapped. S. Rep. No. 93-1297, at 16, 37-38, 50. See id., at 39 (“This subsection includes within the protection of sections 503 and 504 those persons who do not in fact have the condition which they are perceived as having, as well as those persons whose mental or physical condition does not substantially limit their life activities and who thus are not technically within clause (A) in the new definition. Members of both of these groups may be subjected to discrimination on the basis of their being regarded as handicapped”); id., at 37-39, 63-64; see also 120 Cong. Rec. 30531 (1974) (statement of Sen. Cranston). In an appendix to these regulations, the Department of Health and Human Services explained that it chose not to attempt to “set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list.” 45 CFR pt. 84, Appendix A, p. 310 (1985). Nevertheless, the Department went on to state that “such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, [and] emotional illness” would be covered. Ibid. The Department also reinforced what a careful reading of the statute makes plain, “that a physical or mental impairment does not constitute a handicap for purposes of section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities.” Ibid. Although many of the comments on the regulations when first proposed suggested that the definition was unreasonably broad, the Department found that a broad definition, one not limited to so-called “traditional handicaps,” is inherent in the statutory definition. Ibid. See Brief for Petitioners 15-16 (Act covers conditions that leave individuals with “diminished physical or mental capabilities,” but not conditions that could “impair the health of others”); Pet. for Cert. 13-14 (“[T]he concept of a ‘handicap’ [should be limited] to physical and mental conditions which result in either a real or perceived diminution of an individual’s capabilities.... [A]n individual suffering from a contagious disease may not necessarily suffer from any physical or mental impairments affecting his ability to perform the job in question. In other words, an employer’s reluctance to hire such an individual is not due to any real or perceived inability on the individual’s part, but rather because of the employer’s reluctance to expose its other employees and its clientele to the threat of infection”). The United States argues that it is possible for a person to be simply a carrier of a disease, that is, to be capable of spreading a disease without having a “physical impairment” or suffering from any other symptoms associated with the disease. The United States contends that this is true in the case of some carriers of the Acquired Immune Deficiency Syndrome (AIDS) virus. From this premise the United States concludes that discrimination solely on the basis of contagiousness is never discrimination on the basis of a handicap. The argument is misplaced in this case, because the handicap here, tuberculosis, gave rise both to a physical impairment and to contagiousness. This case does not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by the Act. See n. 4, supra. Congress’ desire to prohibit discrimination based on the effects a person’s handicap may have on others was evident from the inception of the Act. For example, Representative Vanik, whose remarks constitute “a primary signpost on the road toward interpreting the legislative history of § 504,” Alexander v. Choate, 469 U. S. 287, 295-296, and n. 13 (1985), cited as an example of improper handicap discrimination a case in which “a court ruled that a cerebral palsied child, who was not a physical threat and was academically competitive, should be excluded from public school, because his teacher claimed his physical appearance ‘produced a nauseating effect’ on his classmates.” 117 Cong. Rec. 45974 (1971). See also 118 Cong. Rec. 36761 (1972) (remarks of Sen. Móndale) (a woman “crippled by arthritis” was denied a job not because she could not do the work but because “college trustees [thought] ‘normal students shouldn’t see her’”); id., at 525 (remarks of Sen. Humphrey); cf. Macgregor, Some Psycho-Social Problems Associated with Facial Deformities, 16 Am. Sociological Rev. 629 (1961). The Department of Health and Human Services regulations, which include among the conditions illustrative of physical impairments covered by the Act “cosmetic disfigurement,” lend further support to Arline’s position that the effects of one’s impairment on others is as relevant to a determination of whether one is handicapped as is the physical effect of one’s handicap on oneself. 45 CFR § 84.3(j)(2)(i)(A) (1985). At oral argument, the United States took the position that a condition such as cosmetic disfigurement could not substantially limit a major life activity within the meaning of the statute, because the only major life activity that it would affect would be the ability to work. The United States recognized that “working” was one of the major life activities listed in the regulations, but said that to argue that a condition that impaired only the ability to work was a handicapping condition was to make “a totally circular argument which hits itself by its bootstraps.” Tr. of Oral Arg. 15-16. The argument is not circular, however, but direct. Congress plainly intended the Act to cover persons with a physical or mental impairment (whether actual, past, or perceived) that substantially limited one’s ability to work. “[T]he primary goal of the Act is to increase employment of the handicapped.” Consolidated Rail Corporation v. Darrone, 465 U. S., at 633, n. 13; see also id., at 632 (“Indeed, enhancing employment of the handicapped was so much the focus of the 1973 legislation that Congress the next year felt it necessary to amend the statute to clarify whether § 504 was intended to prohibit other types of discrimination as well”). S. Rep. No. 93-1297, at 50; see n. 4, supra. See generally, TenBroek & Matson, 54 Cal. L. Rev., at 814; Strauss, Chronic Illness, in The Sociology of Health and Illness 138, 146-147 (P. Conrad & R. Kern eds. 1981). The isolation of the chronically ill and of those perceived to be ill or contagious appears across cultures and centuries, as does the development of complex and often pernicious mythologies about the nature, cause, and transmission of illness. Tuberculosis is no exception. See R. Dubos & J. Dubos, The White Plague (1952); S. Sontag, Illness as Metaphor (1978). Senator Humphrey noted the “irrational fears or prejudice on the part of employers or fellow workers” that make it difficult for former cancer patients to secure employment. 123 Cong. Ree. 13515 (1977). See also Feldman, Wellness and Work, in Psychosocial Stress and Cancer 173-200 (C. Cooper ed. 1984) (documenting job discrimination against recovered cancer patients); S. Sontag, supra, at 6 (“Any disease that is treated as a mystery and acutely enough feared will be felt to be morally, if not literally, contagious. Thus, a surprisingly large number of people with cancer find themselves being shunned by relatives and friends... as if cancer, like TB, were an infectious disease”); Dell, Social Dimensions of Epilepsy: Stigma and Response, in Psychopathology in Epilepsy: Social Dimensions 185-210 (S. Whitman & B. Hermann eds. 1986) (reviewing range of discrimination affecting epileptics); Brief for Epilepsy Foundation of America as Amicus Curiae 5-14 (“A review of the history of epilepsy provides a salient example that fear, rather than the handicap itself, is the major impetus for discrimination against persons with handicaps”). Congress reaffirmed this approach in its 1978 amendments to the Act. There, Congress recognized that employers and other grantees might have legitimate reasons not to extend jobs or benefits to drug addicts and alcoholics, but also understood the danger of improper discrimination against such individuals if they were categorically excluded from coverage under the Act. Congress therefore rejected the original House proposal to exclude addicts and alcoholics from the definition of handicapped individual, and instead adopted the Senate proposal excluding only those alcoholics and drug abusers “whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment... would constitute a direct threat to property or the safety of others.” 29 U. S. C. § 706(7)(B). See 124 Cong. Rec. 30322 (1978); Brief for Senator Cranston et al. as Amici Curiae 35-36; 43 Op. Atty. Gen. No. 12 (1977). This approach is also consistent with that taken by courts that have addressed the question whether the Act covers persons suffering from conditions other than contagious diseases that render them a threat to the safety of others. See, e. g., Strathie v. Department of Transportation, 716 F. 2d 227, 232-234 (CA3 1983); Doe v. New York University, 666 F. 2d 761, 775 (CA2 1981). The dissent implies that our holding rests only on our “own sense of fairness and implied support from the Act,” post, at 289, and that this holding is inconsistent with Pennhurst State School and Hospital v. Halderman, 461 U. S. 1 (1981). It is evident, however, that our holding is premised on the plain language of the Act, and on the detailed regulations that implement it, neither of which the dissent discusses and both of which support the conclusion that those with a contagious disease such as tuberculosis may be considered “handicapped” under the Act. We also find much support in the legislative history, while the dissent is unable to find any evidence to support its view. Accordingly, the dissent’s construction of the Act to exclude those afflicted with a contagious disease is not only arbitrary (and therefore unfair) but unfaithful to basic canons of statutory construction. Nothing in Pennhurst requires such infidelity. The statutory provision at issue there was held to be “simply a general statement of ‘findings’ ” and to express “	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
CHIARELLA v. UNITED STATES No. 78-1202. Argued November 5, 1979 Decided March 18, 1980 Powell, J., delivered the opinion of the Court, in which Stewart, White, Rehnqtjist, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 237. Brennan, J., filed an opinion concurring in the judgment, post, p. 238. Burger, C. J., filed a dissenting opinion, post, p. 239. Blackmun, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 245. Stanley S. Arkin argued the cause for petitioner. With him on the briefs were Mark S. Arisohn and Arthur T. Cambouris. Stephen M. Shapiro argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Getter, Sara Criscitelli, John S. Siffert, Ralph C. Ferrara, and Paul Gonson. Arthur Fleischer, Jr., Harvey L. Pitt, Richard A. Steinwurtzel, and Richard O. Scribner filed a memorandum for the Securities Industry Association as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. The question in this case is whether a person who learns from the confidential documents of one corporation that it is planning an attempt to secure control of a second corporation violates § 10 (b) of the Securities Exchange Act of 1934 if he fails to disclose the impending takeover before trading in the target company’s securities. I Petitioner is a printer by trade. In 1975 and 1976, he worked as a “markup man” in the New York composing room of Pandick Press, a financial printer. Among documents that petitioner handled were five announcements of corporate takeover bids. When these documents were delivered to the printer, the identities of the acquiring and target corporations were concealed by blank spaces or false names. The true names were sent to the printer on the night of the final printing. The petitioner, however, was able to deduce the names of the target companies before the final printing from other information contained in the documents. Without disclosing his knowledge, petitioner purchased stock in the target companies and sold the shares immediately after the takeover attempts were made public. By this method, petitioner realized a gain of slightly more than $30,000 in the course of 14 months. Subsequently, the Securities and Exchange Commission (Commission or SEC) began an investigation of his trading activities. In May 1977, petitioner entered into a consent decree with the Commission in which he agreed to return his profits to the sellers of the shares. On the same day, he was discharged by Pandick Press. In January 1978, petitioner was indicted on 17 counts of violating § 10 (b) of the Securities Exchange Act of 1934 (1934 Act) and SEC Rule 1 Ob-5. After petitioner unsuccessfully moved to dismiss the indictment, he was brought to trial and convicted on all counts. The Court of Appeals for the Second Circuit affirmed petitioner’s conviction. 588 F. 2d 1358 (1978). We granted certiorari, 441 U. S. 942 (1979), and we now reverse. II Section 10 (b) of the 1934 Act, 48 Stat. 891, 15 U. S. C. § 78j, prohibits the use “in connection with the purchase or sale of any security... [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” Pursuant to this section, the SEC promulgated Rule 10b-5 which provides in pertinent part: “It shall be unlawful for any person, directly or indi- • rectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(a) To employ any device, scheme, or artifice to defraud, [or] “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 CFR § 240.10b-5 (1979). This case concerns the legal effect of the petitioner’s silence. The District Court’s charge permitted the jury to convict the petitioner if it found that he willfully failed to inform sellers of target company securities that he knew of a forthcoming takeover bid that would make their shares more valuable. In order to decide' whether silence in such circumstances violates § 10 (b), it is necessary to review the language and legislative history of that statute as well as its interpretation by the Commission and the federal courts. Although the starting point of our inquiry is the language of the statute, Ernst & Ernst v. Hochfelder, 425 U. S. 185; 197 (1976), 110 (b) does not state whether silence may constitute a manipulative or deceptive device. Section 10 (b) was designed as a catchall clause to prevent fraudulent practices. 425 U. S., at 202, 206. But neither the legislative history nor the statute itself affords specific guidance for the resolution of this case. When Rule 10b-5 was promulgated in 1942, the SEC did not discuss the possibility that failure to provide information might run afoul of § 10 (b). The SEC took an important step in the development of § 10 (b) when it held that a broker-dealer and his firm violated that section by selling securities on the basis of undisclosed information obtained from a director of the issuer corporation who was also a registered representative of the brokerage firm. In Cady, Roberts & Co., 40 S. E. C. 907 (1961), the Commission decided that a corporate insider must abstain from trading in the shares of his corporation unless he has first disclosed all material inside information known to him. The obligation to disclose or abstain derives from “[a]n affirmative duty to disclose material information[, which] has been traditionally imposed on corporate ‘insiders/ particularly officers, directors, or controlling stockholders. We, and the courts have consistently held that insiders must disclose material facts which are known to them by virtue of their position but which are not known to persons with whom they deal and which, if known, would affect their investment judgment.” Id., at 911. The Commission emphasized that the duty arose from (i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure. Id., at 912, and n. 15. That the relationship between a corporate insider and the stockholders of his corporation gives rise to a disclosure obligation is not a novel twist of the law. At common law, misrepresentation made for the purpose of inducing reliance upon the false statement is fraudulent. But one who fails to disclose material information prior to the consummation of a transaction commits fraud only when he is under a duty to do so. And the duty to disclose arises when one party has information “that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” In its Cady, Roberts decision, the Commission recognized a relationship of trust and confidence between the shareholders of a corporation and those insiders who have obtained confidential information by reason of their position with that corporation. This relationship gives rise to a duty to disclose because of the “necessity of preventing a corporate insider from... tak[ing] unfair advantage of the uninformed minority stockholders.” Speed v. Transamerica Corp., 99 F. Supp. 808, 829 (Del. 1951). The federal courts have found violations of § 10 (b) where corporate insiders used undisclosed information for their own benefit. E. g., SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833 (CA2 1968), cert. denied, 404 U. S. 1005 (1971). The cases also have emphasized, in accordance with the common-law rule, that “[t]he party charged with failing to disclose market information must be under a duty to disclose it.” Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F. 2d 275, 282 (CA2 1975). Accordingly, a purchaser of stock who has no duty to a prospective seller because he is neither an insider nor a fiduciary has been held to have no obligation to reveal material facts. See General Time Corp. v. Talley Industries, Inc., 403 F. 2d 159, 164 (CA2 1968), cert. denied, 393 U. S. 1026 (1969). This Court followed the same approach in Affiliated Ute Citizens v. United States, 406 U. S. 128 (1972). A group of American Indians formed a corporation to manage joint assets derived from tribal holdings. The corporation issued stock to its Indian shareholders and designated, a local bank as its transfer agent. Because of the speculative nature of the corporate assets and the difficulty of ascertaining the true value of a share, the corporation requested the bank to stress to its stockholders the importance of retaining the stock. Id., at 146. Two of the bank’s assistant managers aided the shareholders in disposing of stock which the managers knew was traded in two separate markets — a primary market of Indians selling to non-Indians through the bank and a resale market consisting entirely of non-Indians. Indian sellers charged that the assistant managers had violated § 10 (b) and Rule 10b-5 by failing to inform them of the higher prices prevailing in the resale market. The Court recognized that no duty of disclosure would exist if the bank merely had acted as a transfer agent.' But the bank also had assumed a duty to act on behalf of the shareholders, and the Indian sellers had relied upon its personnel when they sold their stock. 406 U. S., at 152. Because these officers of the bank were charged with a responsibility to the shareholders, they could not act as market makers inducing the Indians to sell their stock without disclosing the existence of the more favorable non-Indian market. Id., at 152-153. Thus, administrative and judicial interpretations have established that silence in connection with the purchase or sale of securities may operate as a fraud actionable under § 10 (b) despite the absence of statutory language or legislative history specifically addressing the legality of nondisclosure. But such liability is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction. Application of a duty to disclose prior to trading guarantees that corporate insiders, who have an obligation to place the shareholder’s welfare before their own, will not benefit personally through fraudulent use of material, nonpublic information. III In this case, the petitioner was convicted of violating § 10 (b) although he was not a corporate insider and he received no confidential information from the target company. Moreover, the “market information” upon which he relied did not concern the earning power or operations of the target company, but only the plans of the acquiring company. Petitioner’s use of that information was not a fraud under § 10 (b) unless he was subject to an affirmative duty to disclose it before trading. In this case, the jury instructions failed to specify any such duty. In effect, the trial court instructed the jury that petitioner owed a duty to everyone; to all sellers, indeed, to the market as a whole. The jury simply was told to decide whether petitioner used material, nonpublic information at a time when “he knew other people trading in the securities market did not have access to the same information.” Record 677. The Court of Appeals affirmed the conviction by holding that “[a]nyone — corporate insider or not — who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose.” 588 F. 2d, at 1365 (emphasis in original). Although the court said that its test would include only persons who regularly receive material, nonpublic information, id., at 1366, its rationale for that limitation is unrelated to the existence of a duty to disclose. The Court of Appeals, like the trial court, failed to identify a relationship between petitioner and the sellers that could give rise to a duty. Its decision thus rested solely upon its belief that the federal securities laws have “created a system providing equal access to information necessary for reasoned and intelligent investment decisions.” Id., at 1362. The use by anyone of material information not generally available is fraudulent, this theory suggests, because such information gives certain buyers or sellers an unfair advantage over less informed buyers and sellers. This reasoning suffers from two defects. First, not every instance of financial unfairness constitutes fraudulent activity under § 10 (b). See Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 474-477 (1977). Second, the element required to make silence fraudulent — a duty to disclose — is absent in this case. No duty could arise from petitioner’s relationship with the sellers of the target company’s securities, for petitioner had no prior dealings with them. He was not their agent, he was not a fiduciary, he was not a person in whom the sellers had placed their trust and confidence. He was, in fact, a com-píete stranger who dealt with the sellers only through impersonal market transactions. We cannot affirm petitioner’s conviction without recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information. Formulation of such a broad duty, which departs radically from the established doctrine that duty arises from a specific relationship between two parties, see n. 9, supra, should not be undertaken absent some explicit evidence of congressional intent. As we have seen, no such evidence emerges from the language or legislative history of § 10 (b). Moreover, neither the Congress nor the Commission ever has adopted a parity-of-information rule. Instead the problems caused by misuse of market information have been addressed by detailed and sophisticated regulation that recognizes when use of market information may not harm operation of the securities markets. For example, the Williams Act limits but does not completely prohibit a tender offeror’s purchases of target corporation stock before public announcement of the offer. Congress’ careful action in this and other areas contrasts, and is in some tension, with the broad rule of liability we are asked to adopt in this case. Indeed, the theory upon which the petitioner was convicted is at odds with the Commission’s view of § 10 (b) as applied to activity that has the same effect on sellers as the petitioner’s purchases. “Warehousing” takes place when a corporation gives advance notice of its intention to launch a tender offer to institutional investors who then are able to purchase stock in the target company before the tender offer is made public and the price of shares rises. In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller’s behavior presumably would be altered if he had the nonpublic information. Significantly, however, the Commission has acted to bar warehousing under its authority to regulate tender offers after recognizing that action under § 10 (b) would rest on a “somewhat different theory” than that previously used to regulate insider trading as fraudulent activity. We see no basis for applying such a new and different theory of liability in this case. As we have emphasized before, the 1934 Act cannot be read “'more broadly than its language and the statutory scheme reasonably permit.’ ” Touche Ross & Co. v. Redington, 442 U. S. 560, 578 (1979), quoting SEC v. Sloan, 436 U. S. 103, 116 (1978). Section 10 (b) is aptly described as a catchall provision, but what it catches must be fraud. When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak. We hold that a duty to disclose under § 10 (b) does not arise from the mere possession of nonpublic market information. The contrary result is without support in the legislative history of § 10 (b) and would be inconsistent with the careful plan that Congress has enacted for regulation of the securities markets. Cf. Santa Fe Industries, Inc. v. Green, 430 U. S., at 479. IV In its brief to this Court, the United States offers an alternative theory to support petitioner’s conviction. It argues that petitioner breached a duty to the acquiring corporation when he acted upon information that he obtained by virtue of his position as an employee of a printer employed by the corporation. The breach of this duty is said to support a conviction under § 10 (b) for fraud perpetrated -upon both the acquiring corporation and the sellers. We need not decide whether this theory has merit for it was not submitted to the jury. The jury was told, in the language of Rule 10b-5, that it could convict the petitioner if it concluded that he either (i) employed a device, scheme, or artifice to defraud or (ii) engaged in an act, practice, or course of business which operated or would operate as a fraud or deceit upon any person. Record 681. The trial judge stated that a “scheme to defraud” is a plan to obtain money by trick or deceit and that “a failure by Chiarella to disclose material, non-public information in connection with his purchase of stock would constitute deceit.” Id., at 683. Accordingly, the jury was instructed that the petitioner employed a scheme to defraud if he “did not disclose... material nonpublic information in connection with the purchases of the stock.” Id., at 685-686. Alternatively, the jury was instructed that it could convict if “Chiarella’s alleged conduct of having purchased securities without disclosing material, non-public information would have or did have the effect of operating as a fraud upon a seller.” Id., at 686. The judge earlier had stated that fraud “embraces all the means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false misrepresentation, suggestions or by suppression of the truth.” Id., at 683. The jury instructions demonstrate that petitioner was convicted merely because of his failure to disclose material, nonpublic information to sellers from whom he bought the stock of target corporations. The jury was not instructed on the nature or elements of a duty owed by petitioner to anyone other than the sellers. Because we cannot affirm a criminal conviction on the basis of a theory not presented to the jury, Revñs v. United States, 401 U. S. 808, 814 (1971), see Dunn v. United States, 442 U. S. 100, 106 (1979), we will not speculate upon whether such a duty exists, whether it has been breached, or whether such a breach constitutes a violation of § 10 (b). The judgment of the Court of Appeals is Reversed. Of the five transactions, four involved tender offers and one concerned a merger. 588 F. 2d 1358, 1363, n. 2 (CA2 1978). SEC v. Chiarella, No. 77 Civ. Action No. 2534 (GLG) (SDNY May 24, 1977). Section 32 (a) of the 1934 Act sanctions criminal penalties against any person who willfully violates the Act. 15 U. S. C. § 78ff (a) (1976 ed., Supp. II). Petitioner was charged with 17 counts of violating the Act because he had received 17 letters confirming purchase of shares. 450 F. Supp. 95 (SDNY 1978). Only Rules 10b-5 (a) and (e) are at issue here. Rule 10b-5 (b) provides that it shall be unlawful “[t]o 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.” 17 CFR §240.10b-5 (b) (1979). The portion of the indictment based on this provision was dismissed because the petitioner made no statements at all in connection with the purchase of stock. Record 682-683, 686. See SEC Securities Exchange Act Release No. 3230 (May 21, 1942), 7 Fed. Reg. 3804 (1942). In Cady, Roberts, the broker-dealer was liable under § 10 (b) because it received nonpublic information from a corporate insider of the issuer. Since the insider could not use the information, neither could the partners in the brokerage firm with which he was associated. The transaction in Cady, Roberts involved sale of stock to persons who previously may not have been shareholders in the corporation. 40 S. E. C., at 913, and n. 21. The Commission embraced the reasoning of Judge Learned Hand that “the director or officer assumed a fiduciary relation to the buyer by the very sale; for it would be a sorry distinction to allow him to use the advantage of his position to induce the buyer into the position of a beneficiary although he was forbidden to do so once the buyer had become one.” Id., at 914, n. 23, quoting Grate v. Claughton, 187 F. 2d 46, 49 (CA2), cert. denied, 341 U. S. 920 (1951). Restatement (Second) of Torts § 551 (2) (a) (1976). See James & Gray, Misrepresentation — Part II, 37 Md. L. Rev. 488, 523-527 (1978). As regards securities transactions, the American Law Institute recognizes that “silence when there is a duty to... speak may be a fraudulent act.” ALI, Federal Securities Code § 262 (b) (Prop. Off. Draft 1978). See 3 W. Fletcher, Cyclopedia of the Law of Private Corporations §838 (rev. 1975); 3A id., §§ 1168.2, 1171, 1174 ; 3 L. Loss, Securities Regulation 1446-1448 (2d ed. 1961); 6 id., at 3557-3558 (1969 Supp.). See also Brophy v. Cities Service Co., 31 Del. Ch; 241, 70 A. 2d 5 (1949). See generally Note, Rule 10b-5: Elements of a Private Right of Action, 43 N. Y. U. L. Rev. 541, 552-553, and n. 71 (1968); 75 Harv. L. Rev. 1449, 1450 (1962); Daum & Phillips, The Implications of Cady, Roberts, 17 Bus. L. 939, 945 (1962). The dissent of Mr. Justice BlackmuN suggests that the “special facts” doctrine may be applied to find that silence constitutes fraud where one party has superior information to another. Post, at 247-248. This Court has never so held. In Strong v. Repide, 213 U. S. 419, 431-434 (1909), this Court applied the special-facts doctrine to conclude that a corporate insider had a duty to disclose to a shareholder. In that case, the majority shareholder of a corporation secretly purchased the stock of another shareholder without revealing that the corporation, under the insider's direction, was about to sell corporate assets at a price that would greatly enhance the value of the stock. The decision in Strong v. Repide was premised upon the fiduciary duty between the corporate insider and the shareholder. See Pepper v. Litton, 308 U. S. 295, 307, n. 15 (1939). See also SEC v. Great American Industries, Inc., 407 F. 2d 453, 460 (CA2 1968), cert. denied, 395 U. S. 920 (1969); Kohler v. Kohler Co., 319 F. 2d 634, 637-638 (CA7 1963); Note, 43 N. Y. U. L. Rev., supra n. 10, at 554; Note, The Regulation of Corporate Tender Offers Under Federal Securities Law: A New Challenge for Rule 10b-5, 33 U. Chi. L. Rev. 359, 373-374 (1966). See generally Note, Civil Liability under Rule X-10b-5, 42 Va. L. Rev. 537, 554-561 (1956). “Tippees” of corporate insiders have been held liable under § 10 (b) because they have a duty not to profit from the use of inside information that they know is confidential and know or should know came from a corporate insider, Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 495 F. 2d 228, 237-238 (CA2 1974). The tippee’s obligation has been viewed as arising from his role as a participant after the fact in the insider’s breach of a fiduciary duty. Subcommittees of American Bar Association Section of Corporation, Banking, and Business Law, Comment Letter on Material, Non-Public Information (Oct. 15, 1973), reprinted in BNA, Securities Regulation & Law Report No. 233, pp. D-1, D-2 (Jan. 2, 1974). See Fleischer, Mundheim, & Murphy, An Initial Inquiry into the Responsibility to Disclose Market Information, 121 U. Pa. L. Rev. 798, 799 (1973). The Court of Appeals said that its “regular access to market information” test would create a workable rule embracing “those who occupy... strategic places in the market mechanism.” 588 F. 2d, at 1365. These considerations are insufficient to support-a duty to disclose. A duty arises from the relationship between parties, see nn. 9 and 10, supra, and accompanying text, and not merely from one’s ability to acquire information because of his position in the market. The Court of Appeals also suggested that the acquiring corporation itself would not be a “market insider” because a tender offeror creates, rather than receives, information and takes a substantial economic risk that its offer will be unsuccessful. 588 F. 2d, at 1366-1367. Again, the Court of Appeals departed from the analysis appropriate to recognition of a duty. The Court of Appeals for the Second Circuit previously held, in a manner consistent with our analysis here, that a tender offeror does not violate § 10 (b) when it makes preannouncement purchases precisely because there is no relationship between the offeror and the seller: “We know of no rule of law... that a purchaser of stock, who was not an ‘insider’ and had no fiduciary relation to a prospective seller, had any obligation to reveal circumstances that might raise a seller’s demands and thus abort the sale.” General Time Corp. v. Talley Industries, Inc., 403 F. 2d 159, 164 (1968), cert. denied, 393 U. S. 1026 (1969). Title 15 U. S. C. §78m (d)(1) (1976 ed., Supp. II) permits a tender offeror to purchase 5% of the target company’s stock prior to disclosure of its plan for acquisition. Section 11 of the 1934 Act generally forbids a member of a national securities exchange from effecting any transaction on the exchange for its own account. 15 U. S. C. § 78k (a)(1). But Congress has specifically exempted specialists from this prohibition — broker-dealers who execute orders for customers trading in a specific corporation’s stock, while at the same time buying and selling that corporation’s stock on their own behalf. § 11 (a) (1) (A), 15 U. S. C. § 78k (a) (1) (A); see S. Rep. No. 94-75, p. 99 (1975); Securities and Exchange Commission, Report of Special Study of Securities Markets, H. R. Doc. No. 95, 88th Cong., 1st Sess., pt. 2, pp. 57-58, 76 (1963). See generally S. Robbins, The Securities Markets 191-193 (1966). The exception is based upon Congress’ recognition that specialists contribute to a fair and orderly marketplace at the same time they exploit the informational advantage that comes from their possession of buy and sell orders. H. R. Doc. No. 95, supra, at 78-80. Similar concerns with the functioning of the market prompted Congress to exempt market makers, block positioners, registered odd-lot dealers, bona fide arbitrageurs, and risk arbitrageurs from § ll's general prohibition on member trading. 15 U. S. C. §§ 78k (a) (1) (A)-(D); see S. Rep. No. 94-75, supra, at 99. See also Securities Exchange Act Release No. 34-9950, 38 Fed. Reg. 3902, 3918 (1973). Fleischer, Mundheim, & Murphy, supra n. 13, at 811-812. SEC Proposed Rule § 240.14e-3, 44 Fed. Reg. 70352-70355, 70359 (1979). 1 SEC Institutional Investor Study Report, H. R. Doc. No. 92-64, pt. 1, p. xxxii (1971). Mr. Justice Blacemun’s dissent would establish the following standard for imposing criminal and civil liability under § 10 (b) and Rule 10b-5: "[P] ersons having access to confidential material information that is not legally available to others generally are prohibited... from engaging in schemes to exploit their structural informational advantage through trading in affected securities.” Post, at 251. This view is not substantially different from the Court of Appeals’ theory that anyone “who regularly receives material. nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose,” 588 F. 2d, at 1365, and must be rejected for the reasons stated in Part III. Additionally, a judicial holding that certain undefined activities “generally are prohibited” by § 10 (b) would raise questions whether either criminal or civil defendants would be given fair notice that they have engaged in illegal activity,	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 104 ]	sc_adminaction
NEW YORK STATE BOARD OF ELECTIONS et al. v. LOPEZ TORRES et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 06-766. Argued October 3, 2007 Decided January 16, 2008 Theodore B. Olson argued the cause for petitioners New York State Board of Elections et al. With him on the briefs were Matthew D. McGill, Michael S. Diamant, Todd D. Valentine, Randy M. Mastro, and Jennifer L. Conn. Andrew J. Rossman argued the cause for petitioners New York County Democratic Committee et al. With him on the briefs were Steven M. Pesner, James P. Chou, James E. dAuguste, Vincenzo A. DeLeo, Edward P. Lazarus, Carter G. Phillips, Thomas C. Goldstein, Joseph L. Forstadt, Ernst PL. Rosenberger, Burton N. Lipshie, David A. Sifre, and Arthur W. Greig. Andrew M. Cuomo, Attorney General of New York, Barbara D. Underwood, Solicitor General, Benjamin N. Gut-man, Deputy Solicitor General, and Denise A. Hartman, Assistant Solicitor General, filed briefs for petitioner the State of New York. Frederick A. O. Schwarz, Jr., argued the cause for respondents. With him on the brief were Burt Neuborne, Deborah Goldberg, Kent A. Yalowitz, and Paul M. Smith Briefs of amici curiae urging reversal were filed for the Asian American Bar Association of New York by Steven B. Shapiro and Vincent T. Chang; for the Mid-Manhattan Branch of the NAACP et al. by Gene C. Schaerr, Steffen N. Johnson, Linda T. Coberly, and Michael J. Friedman; and for the Republican National Committee by H. Christopher Bartolomucci. Briefs of amici curiae urging affirmance were filed for the City of New York et al. by Preeta D. Bansal, Barry Kamins, Michael A. Cardozo, Victor A. Kovner, and Kathryn Grant Madigan; for the American Civil Liberties Union et al. by Arthur N. Eisenberg and Steven R. Shapiro; for the Asian American Legal Defense and Education Fund et al. by Mariann Meier Wang; for the Cato Institute et al. by Erik S. Jaffe; for Guy-Uriel E. Charles et al. by Ellen D. Katz, pro se; for the New York County Lawyers' Association by Stephanie G. Wheeler and Bradley P. Smith; for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp; for John Dunne by Andrew H. Schapiro; for Charles J. Hynes by Paul A. Engelmayer; for Edward I. Koch by Mr. Koch, pro se, and Bruce S. Kaplan; for Thomas Mann et al. by Daniel R. Ortiz, J. Gerald Hebert, and Paul S. Ryan; and for Former New York State Judges et al. by Holly K. Kulka and Jonathan R. Dowell. Justice Scalia delivered the opinion of the Court. The State of New York requires that political parties select their nominees for Supreme Court Justice at a convention of delegates chosen by party members in a primary election. We consider whether this electoral system violates the First Amendment rights of prospective party candidates. I A The Supreme Court of New York is the State’s trial court of general jurisdiction, with an Appellate Division that hears appeals from certain lower courts. See N. Y. Const., Art. VI, §§ 7, 8. Under New York’s current Constitution, the State is divided into 12 judicial districts, see Art. VI, § 6(a); N. Y. Jud. Law Ann. § 140 (West 2005), and Supreme Court Justices are elected to 14-year terms in each such district, see N. Y. Const., Art. VI, § 6(c). The New York Legislature has provided for the election of a total of 328 Supreme Court Justices in this fashion. See N. Y. Jud. Law Ann. § 140-a (West Supp. 2007). Over the years, New York has changed the method by which Supreme Court Justices are selected several times. Under the New York Constitution of 1821, Art. IV, §7, all judicial officers, except Justices of the Peace, were appointed by the Governor with the consent of the Senate. See 7 Sources and Documents of the U. S. Constitutions 181, 184-185 (W. Swindler ed. 1978). In 1846, New York amended its Constitution to require popular election of the Justices of the Supreme Court (and also the Judges of the New York Court of Appeals). Id., at 192, 200 (N. Y. Const. of 1846, Art. VI, § 12). In the early years under that regime, the State allowed political parties to choose their own method of selecting the judicial candidates who would bear their endorsements on the general-election ballot. See, e. g., Report of Joint Committee of Senate and Assembly of New York, Appointed to Investigate Primary and Election Laws of This and Other States, S. Doc. No. 26, pp. 195-219 (1910). The major parties opted for party conventions, the same method then employed to nominate candidates for other state offices. Ibid.; see also P. Ray, An Introduction to Political Parties and Practical Politics 94 (1913). In 1911, the New York Legislature enacted a law requiring political parties to select Supreme Court nominees (and most other nominees who did not run statewide) through direct primary elections. Act of Oct. 18, 1911, ch. 891, § 45(4), 1911 N. Y. Laws pp. 2657, 2682. The primary system came to be criticized as a “device capable of astute and successful manipulation by professionals,” Editorial, The State Convention, N. Y. Times, May 1, 1917, p. 12, and the Republican candidate for Governor in 1920 campaigned against it as “a fraud” that “ ‘offered the opportunity for two things, for the demagogue and the man with money,’ ” Miller Declares Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. A law enacted in 1921 required parties to select their candidates for the Supreme Court by a convention composed of delegates elected by party members. Act of May 2, 1921, ch. 479, §§ 45(1), 110, 1921 N. Y. Laws pp. 1451, 1454, 1471. New York retains this system of choosing party nominees for Supreme Court Justice to this day. Section 6-106 of New York’s election law sets forth its basic operation: “Party nominations for the office of justice of the supreme court shall be made by the judicial district convention.” N. Y. Elec. Law Ann. § 6-106 (West 2007). A “party” is any political organization whose candidate for Governor received 50,000 or more votes in the most recent election. § 1-104(3). In a September “delegate primary,” party members elect delegates from each of New York’s 150 assembly districts to attend the party’s judicial convention for the judicial district in which the assembly district is located. See N. Y. State Law Ann. §121 (West 2003); N. Y. Elec. Law Ann. §§ 6-124, 8-100(l)(a) (West 2007). An individual may run for delegate by submitting to the Board of Elections a designating petition signed by 500 enrolled party members residing in the assembly district, or by five percent of such enrolled members, whichever is less. §§6-136(2)(i), (3). These signatures must be gathered within a 37-day period preceding the filing deadline, which is approximately two months before the delegate primary. §§ 6-134(4), 6-158(1). The delegates elected in these primaries are uncommitted; the primary ballot does not specify the judicial nominee whom they will support. §7-114. The nominating conventions take place one to two weeks after the delegate primary. §§ 6-126,6-158(5). Each of the 12 judicial districts has its own convention to nominate the party’s Supreme Court candidate or candidates who will run at large in that district in the general election. §§6-124, 6-156. The general election takes place in November. § 8-100(l)(c). The nominees from the party conventions appear automatically on the general-election ballot. § 7-104(5). They may be joined on the general-election ballot by independent candidates and candidates of political organizations that fail to meet the 50,000 vote threshold for “party” status; these candidates gain access to the ballot by submitting timely nominating petitions with (depending on the judicial district) 3,500 or 4,000 signatures from voters in that district or signatures from five percent of the number of votes cast for Governor in that district in the prior election, whichever is less. §§ 6-138,6-142(2). B Respondent López Torres was elected in 1992 to the civil court for Kings County — a court with more limited jurisdiction than the Supreme Court — having gained the nomination of the Democratic Party through a primary election. She claims that soon after her election, party leaders began to demand that she make patronage hires, and that her consistent refusal to do so caused the local party to oppose her unsuccessful candidacy at the Supreme Court nominating conventions in 1997, 2002, and 2003. The following year, López Torres — together with other candidates who had failed to secure the nominations of their parties, voters who claimed to have supported those candidates, and the New York branch of a public-interest organization called Common Cause — brought suit in federal court against the New York Board of Elections, which is responsible for administering and enforcing the New York election law. See §§ 3-102, 3-104. They contended that New York’s election law burdened the rights of challengers seeking to run against candidates favored by the party leadership, and deprived voters and candidates of their rights to gain access to the ballot and to associate in choosing their party’s candidates. As relevant here, they sought a declaration that New York’s convention system for selecting Supreme Court Justices violates their First Amendment rights, and an injunction mandating the establishment of a direct primary election to select party nominees for Supreme Court Justice. The District Court issued a preliminary injunction granting the relief requested, pending the New York Legislature’s enactment of a new statutory scheme. 411 F. Supp. 2d 212, 256 (EDNY 2006). A unanimous panel of the United States Court of Appeals for the Second Circuit affirmed. 462 F. 3d 161 (2006). It held that voters and candidates possess a First Amendment right to a “realistic opportunity to participate in [a political party’s] nominating process, and to do so free from burdens that are both severe and unnecessary.” Id., at 187. New York’s electoral law violated that right because of the quantity of signatures and delegate recruits required to obtain a Supreme Court nomination at a judicial convention, see id., at 197, and because of the apparent reality that party leaders can control delegates, see id., at 198-200. In the court’s view, because “one-party rule” prevailed within New York’s judicial districts, a candidate had a constitutional right to gain access to the party’s convention, notwithstanding her ability to get on the general-election ballot by petition signatures. Id., at 193-195, 200. The Second Circuit’s holding effectively returned New York to the system of electing Supreme Court Justices that existed before the 1921 amendments to the election law. We granted certiorari. 549 U. S. 1204 (2007). II A A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981); California Democratic Party v. Jones, 530 U. S. 567, 574-575 (2000). These rights are circumscribed, however, when the State gives the party a role in the election process — as New York has done here by giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. See id., at 573. And then also the State acquires a legitimate governmental interest in ensuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be. Id., at 572-573. We have, for example, considered it to be “too plain for argument” that a State may prescribe party use of primaries or conventions to select nominees who appear on the general-election ballot. American Party of Tex. v. White, 415 U. S. 767, 781 (1974). That prescriptive power is not without limits. In Jones, for example, we invalidated on First Amendment grounds California’s blanket primary, reasoning that it permitted non-party-members to determine the candidate bearing the party’s standard in the general election. 530 U. S., at 577. See also Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989); Tashjian v. Republican Party of Conn., 479 U. S. 208, 214-217 (1986). In the present case, however, the party’s associational rights are at issue (if at all) only as a shield and not as a sword. Respondents are in no position to rely on the right that the First Amendment confers on political parties to structure their internal party processes and to select the candidate of the party’s choosing. Indeed, both the Republican and Democratic state parties have intervened from the very early stages of this litigation to defend New York’s electoral law. The weapon wielded by these plaintiffs is their own claimed associational right not only to join, but to have a certain degree of influence in, the party. They contend that New York’s electoral system does not go far enough— does not go as far as the Constitution demands — in ensuring that they will have a fair chance of prevailing in their parties’ candidate-selection process. This contention finds no support in our precedents. We have indeed acknowledged an individual’s associational right to vote in a party primary without undue state-imposed impediment. In Kusper v. Pontikes, 414 U. S. 51, 57 (1973), we invalidated an Illinois law that required a voter wishing to change his party registration so as to vote in the primary of a different party to do so almost two full years before the primary date. But Kusper does not cast doubt on all state-imposed limitations upon primary voting. In Rosario v. Rockefeller, 410 U. S. 752 (1973), we upheld a New York State requirement that a voter have enrolled in the party of his choice at least 30 days before the previous general election in order to vote in the next party primary. In any event, respondents do not claim that they have been excluded from voting in the primary. Moreover, even if we extended Kusper to cover not only the right to vote in the party primary but also the right to run, the requirements of the New York law (a 500-signature petition collected during a 37-day window in advance of the primary) are entirely reasonable. Just as States may require persons to demonstrate “a significant modicum of support” before allowing them access to the general-election ballot, lest it become unmanageable, Jenness v. Fortson, 403 U. S. 431, 442 (1971), they may similarly demand a minimum degree of support for candidate access to a primary ballot. The signature requirement here is far from excessive. See, e. g., Norman v. Reed, 502 U. S. 279, 295 (1992) (approving requirement of 25,000 signatures, or approximately two percent of the electorate); White, supra, at 783 (approving requirement of one percent of the vote cast for Governor in the preceding general election, which was about 22,000 signatures). Respondents’ real complaint is not that they cannot vote in the election for delegates, nor even that they cannot run in that election, but that the convention process that follows the delegate election does not give them a realistic chance to secure the party’s nomination. The party leadership, they say, inevitably garners more votes for its slate of delegates (delegates uncommitted to any judicial nominee) than the unsupported candidate can amass for himself. And thus the leadership effectively determines the nominees. But this says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership. No New York law compels election of the leadership’s slate — or, for that matter, compels the delegates elected on the leadership’s slate to vote the way the leadership desires. And no state law prohibits an unsupported candidate from attending the convention and seeking to persuade the delegates to support her. Our cases invalidating ballot-access requirements have focused on the requirements themselves, and not on the manner in which political actors function under those requirements. See, e.g., Bullock v. Carter, 405 U. S. 134 (1972) (Texas statute required exorbitant filing fees); Williams v. Rhodes, 393 U. S. 23 (1968) (Ohio statute required, inter alia, excessive number of petition signatures); Anderson v. Celebrezze, 460 U. S. 780 (1983) (Ohio statute established unreasonably early filing deadline). Here respondents complain not of the state law, but of the voters’ (and their elected delegates’) preference for the choices of the party leadership. To be sure, we have, as described above, permitted States to set their faces against “party bosses” by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an individual’s constitutional right to have a “fair shot” at winning the party’s nomination. And with good reason. What constitutes a “fair shot” is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party’s associational rights. But it is hardly a manageable constitutional question for judges— especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a “fair shot” at party nomination. Party conventions, with their attendant “smoke-filled rooms” and domination by party leaders, have long been an accepted manner of selecting party candidates. “National party conventions prior to 1972 were generally under the control of state party leaders” who determined the votes of state delegates. American Presidential Elections: Process, Policy, and Political Change 14 (H. Schantz ed. 1996). Selection by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses. See ibid. The Second Circuit’s judgment finesses the difficulty of saying how much of a shot is a “fair shot” by simply mandating a primary until the New York Legislature acts. This was, according to the Second Circuit, the New York election law’s default manner of party-candidate selection for offices whose manner of selection is not otherwise prescribed. Petitioners question the propriety of this mandate, but we need not pass upon that here. Even conceding its propriety, there is good reason to believe that the elected members of the New York Legislature remain opposed to the primary, for the same reasons their predecessors abolished it 86 years ago: because it leaves judicial selection to voters uninformed about judicial qualifications, and places a high premium upon the ability to raise money. Should the New York Legislature persist in that view, and adopt something different from a primary and closer to the system that the Second Circuit invalidated, the question whether that provides enough of a “fair shot” would be presented. We are not inclined to open up this new and excitingly unpredictable theater of election jurisprudence. Selection by convention has been a traditional means of choosing party nominees. While a State may determine it is not desirable and replace it, it is not unconstitutional. B Respondents put forward, as a special factor which gives them a First Amendment right to revision of party processes in the present case, the assertion that party loyalty in New York’s judicial districts renders the general-election ballot “uncompetitive.” They argue that the existence of entrenched “one-party rule” demands that the First Amendment be used to impose additional competition in the nominee-selection process of the parties. (The asserted “one-party rule,” we may observe, is that of the Democrats in some judicial districts, and of the Republicans in others. See 411 F. Supp. 2d, at 230.) This is a novel and implausible reading of the First Amendment. To begin with, it is hard to understand how the competitiveness of the general election has anything to do with respondents’ associational rights in the party’s selection process. It makes no difference to the person who associates with a party and seeks its nomination whether the party is a contender in the general election, an underdog, or the favorite. Competitiveness may be of interest to the voters in the general election, and to the candidates who choose to run against the dominant party. But we have held that those interests are well enough protected so long as all candidates have an adequate opportunity to appear on the general-election ballot. In Jenness we upheld a petition-signature requirement for inclusion on the general-election ballot of five percent of the eligible voters, see 403 U. S., at 442, and in Munro v. Socialist Workers Party, 479 U. S. 189, 199 (1986), we upheld a petition-signature requirement of one percent of the vote in the State’s primary. New York’s general-election balloting procedures for Supreme Court Justice easily pass muster under this standard. Candidates who fail to obtain a major party’s nomination via convention can still get on the general-election ballot for the judicial district by providing the requisite number of signatures of voters resident in the district. N. Y. Elec. Law Ann. § 6-142(2). To our knowledge, outside of the Fourteenth and Fifteenth Amendment contexts, see Jones, 530 U. S., at 573, no court has ever made “one-party entrenchment” a basis for interfering with the candidate-selection processes of a party. (Of course, the lack of one-party entrenchment will not cause free access to the general-election ballot to validate an otherwise unconstitutional restriction upon participation in a party’s nominating process. See Bullock, 405 U. S., at 146-147.) The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties’ freedom of association), discourage party monopoly — for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. See Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product. Limiting respondents’ court-mandated “fair shot at party endorsement” to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into “one-party dominance.” In the case of New York’s election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts — and in those districts that are “competitive” the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass. New York State has thrice (in 1846, 1911, and 1921) displayed a willingness to reconsider its method of selecting Supreme Court Justices. If it wishes to return to the primary system that it discarded in 1921, it is free to do so; but the First Amendment does not compel that. We reverse the Second Circuit’s contrary judgment. It is so ordered.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
April 11, 1955. No. 333. Pino v. Landon, District Director, Immigration and Naturalization Service. Argued March 30, 1955. Decided April 11, 1955. Reuben Goodman argued the cause for petitioner. With him on the brief were Paul T. Smith and Jacob Spiegel. John F. Davis argued the cause for respondent. With him on the brief were Solicitor General SobelojJ, Assistant Attorney General Olney, Beatrice Rosenberg and Richard J. Blanchard. Certiorari, 348 U. S. 870, to the United States Court of Appeals for the First Circuit. Per Curiam: On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of § 241 of the Immigration and Nationality Act. The judgment is reversed.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 67 ]	sc_adminaction
CARTER et al. v. WEST FELICIANA PARISH SCHOOL BOARD et al. No. 944. Decided December 13, 1969 See 419 F. 2d 1211. Richard B. Sobol, Murphy W. Bell, Robert F. Collins, Norman C. Amaker, and Melvyn Zarr for petitioners. Per Curiam. This matter reaches the Court on an application presented to Mr. Justice Black, as Circuit Justice for the Fifth Circuit, seeking a temporary injunctive order and other relief; and it appearing that 1. Three cases were originally filed in 1965, seeking the desegregation of three Louisiana school districts. 2. Pursuant to orders of the District Courts, in July of this year the Office of Education of the United States Department of Health, Education, and Welfare prepared and submitted terminal desegregation plans for each of the districts here involved for the school year 1969-1970. These plans were rejected by the District Courts. 3. The District Courts’ orders were reversed by the United States Court of Appeals for the Fifth Circuit sitting en banc, on December 1, 1969, subsequent to this Court’s decision in Alexander v. Holmes County Board of Education, ante, at 19. That court ordered respondent school boards and 13 other school boards to desegregate faculties completely and to adopt plans for conversion to unitary school systems by February 1, 1970, but authorized a delay in pupil desegregation until September 1970. 4. On December 10,1969, petitioners filed in this Court a petition for a writ of certiorari, together with a motion to advance consideration of the petition and a motion for summary disposition, contending that the decision of the Court of Appeals is inconsistent with this Court’s decision in Alexander v. Holmes County Board of Education, supra. The relief sought on the merits is the implementation of the Department of Health, Education, and Welfare plans for student assignment on or before February 1, 1970, simultaneous with the other steps ordered by the Court of Appeals. 5. Petitioners, by this application seek a temporary injunctive order “requiring the respondent school boards, pending a decision by this Court on the merits, to take all necessary clerical and administrative steps — such as determining new student assignments, bus routes and athletic schedules and preparing for any necessary physical changes — preparatory to complete conversion under the HEW plans by February 1, 1970. If petitioners are successful, the administrative and clerical tasks necessary to conversion will have been undertaken roughly according to the timetable established by the court below in the Alexander cases, and petitioners’ right to effective relief will not have been put in question by the passage of time. If petitioners are unsuccessful in this Court, the school boards would be under no compulsion to convert during this school year.” Application to the Honorable Hugo L. Black, Circuit Justice for the Fifth Circuit, for a Temporary Injunctive Order 3-4. (Footnote omitted.) It is hereby adjudged, ordered, and decreed: (1) Petitioners’ application for a temporary injunc-tive order requiring the respondent school boards to take such preliminary steps as may be necessary to prepare for complete student desegregation by February 1, 1970, is granted. Alexander v. Holmes County Board of Education, supra. (2) By way of interim relief, and pending this Court’s disposition of the petition for certiorari, the judgment of the Court of Appeals is vacated insofar as it deferred desegregation of schools until the school year 1970-1971. (3) By way of interim relief pending further order of this Court, the respondent school boards are directed to take no steps which are inconsistent with, or which will tend to prejudice or delay, a schedule to implement on or before February 1, 1970, desegregation plans submitted by the Department of Health, Education, and Welfare for student assignment simultaneous with the other steps ordered by the Court of Appeals. (4) The respondents are directed to file any response to the petition herein on or before January 2, 1970.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 61 ]	sc_adminaction
ALEXANDER, COMMISSIONER OF INTERNAL REVENUE v. “AMERICANS UNITED” INC. No. 72-1371. Argued January 7, 1974 Decided May 15, 1974 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, post, p. 763. Douglas, J., took no part in the decision of the case. Assistant Attorney General Crampton argued the cause for petitioner. With him on the briefs were Solicitor General Bork, Richard B. Stone, Stúart A. Smith, Ernest J. Brown, Grant W. Wiprud, and Leonard J. Henzke, Jr. Alan B. Morrison and Franklin C. Salisbury argued the cause and filed a brief for respondent. Briefs of amici curiae urging affirmance were filed by H. David Rosenbloom, Harry J. Rubin, John Holt Myers, Samuel Rabinove, and Mortimer M. Caplin for the Council on Foundations, Inc., and by Thomas F. Field for Tax Analysts and Advocates. Mr. Justice Powell delivered the opinion of the Court. Respondent is a nonprofit, educational corporation organized under the laws of-the District of Columbia as “Protestants and Other Americans United for Separation of Church and State.” Its purpose is to defend and maintain religious liberty in the United States by the dissemination of knowledge concerning the constitutional principle of the separation of church and State. In 1950, the Internal Revenue Service issued a ruling letter that respondent qualified as a tax-exempt organization under the predecessor provision to § 501 (c) (3) of the Internal Revenue Code of' 1954 (the Code), 26 U. S. C. § 501 (c) (3). As a result, the Service treated contributions to respondent as charitable deductions under the predecessor provision of § 170 (c) (2) of the Code, 26 U. S. C. § 170 (c)(2). This situation continued unchanged until April 25, 1969, when the Service issued a ruling letter revoking the 1950 ruling on the ground that respondent had.violated §§ 501 (c)(3) and 170 (c)(2)(D) by devoting a substantial part of its activities to attempts to influence legislation. Shortly thereafter, the Service issued another ruling letter exempting respondent from income taxation as a “social welfare1’ organization under Code § 501 (c) (4), 26 U. S. C. § 501 (c) (4) . The effect of this change in status was to render respondent liable for unemployment (FUTA) taxes under Code § 3301, 26 U. S. C. § 3301, and to destroy its eligibility for tax-deductible contributions under § 170. Because the 1969 ruling letter caused a substantial decrease in its contributions, respondent and two of its benefactors initiated the instant action in the United States District Court for the District of Columbia on July 30, 1970. They sought a declaratory judgment that the Service’s administration of the lobbying proscriptions of §§501 (c)(3) and 170 was erroneous or unconstitutional and injunctive relief requiring reinstatement of respondent’s § 501 (c)(3) ruling letter. Because their objections to the Service’s action included a facial challenge to the constitutionality of federal statutes, they also requested the convening of a three-judge district court pursuant to 28 U. S. C. § 2282. The Service moved to dismiss the action, principally on the ground that the exception in the Declaratory Judgment Act for cases “with respect to Federal taxes,” and the_prohibition in the Anti-Injunction Act against suits “for the purpose of restraining the assessment or collection of any tax,” ousted the court of subject-matter jurisdiction. The District Court accepted this argument, refused to convene a three-judge court, and dismissed the complaint in an unpublished order filed March 9, 1971. The United' States Court of Appeals for the District of Columbia Circuit affirmed the dismissal insofar as it pertained to the individual plaintiffs, but it reversed as to respondent and remanded the case to the District Court with instructions to convene a three-judge court. “Americans United” Inc. v. Walters 155 U. S. App. D. C. 284, 477 F. 2d 1169 (1973). The Service petitioned for review, and. we granted certiorari. 412 U. S. 927 (1973). We reverse. In our opinion in Bob Jones University v. Simon, ante, p. 725, we examined the meaning'of the Anti-Injunction Act and its interpretation in prior opinions of this Court, and we reaffirmed our adherence to the two-part test announced in Enochs v. Williams Packing & Navigation Co., 370 U. S. 1 (1962). To reiterate, the Court in Williams Packing únanimously held that a pre-enforcement injunction against the. assessment or collection of taxes may be granted only (i) “if it is clear that under no circumstances could the Government ultimately prevail . . . id., at 7; and (ii) “if equity jurisdiction otherwise exists.” Ibid. Unless' both conditions are met, a suit for preventive injunctive relief must be dismissed. In the instant case the Court of Appeals-recognized Williams Packing as controlling precedent for responds ent’s individual coplaintiffs and affirmed the dismissal of the súit as to them. 155 U. S. App. D. C., at 292, 477 F. 2d, at 1177. The court held that the relief requested by the, individual plaintiffs “relate [d] directly to the assessment and collection of taxes” and that the allegations of infringements of constitutional rights were “to no avail” in overcoming the barrier of § 7421 (a). Id.; at 291, 477 F. 2d, at 1176. The court also recognized that respondent could not satisfy the Williams Packing criteria, id., at 298, 477 F. 2d, at 1183, but concluded that respondent’s suit was without the scope of the Anti-Injunction Act and therefore. not subject to the Williams Packing test. The court’s conclusion with regard to respondent rested on the confluence of several factors. One was the constitutional nature of respondent’s cláims. As the court noted, the thrust of respondent’s argument is not that it qualifies for a § 501 (c) (3) exemption under existing law but rather that that provision’s “substantial part” test and proscription against efforts to influence legislation are unconstitutional. Id., at 293, 477 F. 2d, at 1178. Obviously, this observation could not have beendispositive to the Court of Appeals, for this factor does not differentiate respondent, which was allowed to sue, from the individual coplaintiffs, who likewise pressed constitutional claims but who were dismissed from the action. Furthermore, decisions of this Court , make it unmistakably clear that the constitutional nature of a taxpayer’s claim, as distinct from its probability of success, is of no consequence under the Anti-Injunction Act. E. g., Bailey v. George, 259 U. S. 16 (1922); Dodge v. Osborn, 240 U. S. 118 (1916). The other three factors identifiéd by the Court of Appeals are equally unpersuasive. . First, the court noted that respondent “does not seek in this lawsuit to enjoin the assessment or collection of its own taxes.” 155 U. S. App. D. C., at 292, 477 F. 2d, at 1177. Because respondent volunteered to pay FUTA taxes even if it obtained an injunction restoring its •§ 501 (c) (3) status, this observation, we may assume, is correct. It is also irrelevant. •Section 7421 (a) does not bar merely a taxpayer’s attempt to enjoin the collection of his own taxes. Rather, it declares in sweeping terms that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” Thus a suit to enjoin the assessment or collection of anyone’s taxes triggers the literal terms of § 7421 (a). ■ Perhaps the real point of the court’s observation about respondent’s taxes was to ■ set the stage for its more pertinent conclusion that restraining the assessment or collection of taxes was “at best a collateral effect” of respondent’s action and that this suit arose “in a posture removed from a restraint on assessment or collection.” 155 U. S. App. D. C., at 294, 477 F. 2d, at 1179. We disagree. Under any reasonable construction of the statutory term “purpose,” the objective of this suit was to restrain the assessment and collection of taxes from respondent’s contributors. The obvious purpose of" respondent’s action was to restore advance assurance that donations to it would qualify as charitable deductions under § 170 that would reduce the level of taxes of its donors. Indeed, respondent would not be interested in. obtaining the declaratory and injunctive relief requested if that relief did not effectively restrain the taxation of its contributors. Thus , we think it circular to conclude, as did the Court of Appeals, that respondent’s “primary design’’ was not “to remove the burden of taxation from those presently contributing but rather to avoid the disposition of contributed funds away from the corporation.” Ibid. The latter goal is merely a restatement of the former and can be accomplished only by restraining the assessment and collection of a tax in contravention of § 7421 (a). Finally, -the Court of Appeals emphasized that respondent had no “alternate legal remedy in the form of adequate refund litigation ....” Id., at 295, 477 F. 2d, at 1180. The court recognized, of course, that respondent does have an opportunity to litigate its claims in an action for refund of FUTA taxes but dismissed this alternative with the statement that “it is subject to certain conditions and, we feel, is so far removed from the mainstream of the action and relief sought as to hardly be considered adequate.” Id., at 294 n. 13, 477 F. 2d, at 1179 n. 13. The import of these comments is unclear. If they are. taken to mean that a refund action is, as a practical matter, inadequate to avoid the decrease in respondent’s contributions for the interim between the withdrawal of § 501 (c) (3) status and the final adjudication of its entitlement to that exemption, they are certainly accurate. This, however, is only'a statemént of irreparable injury, which is the essential prerequisite.for injunctive relief, under traditionál equitable standards and only one part of the Williams Packing test. As noted in Bob Jones, ante, at 745-746, allowing injunctive relief on the basis of this showing alone would render § 7421 (a), quite meaningless. If, on the other hand, the court’s comments about the inadequacy of a refund action for FUTA taxes are .interpreted to mean that respondent lacks an opportunity to have its claims finally adjudicated by a court of law, we think they are inaccurate. Respondent’s liability for FUTA taxes hinges on precisely the same legal issue as - does its eligibility for tax-deductible contributions under § 170, namely its entitlement to § 501 (c)(3) status. And respondént will have a full opportunity to litigate the legality of the Service’s withdrawal of respondent’s §501 (c)(3) ruling letter in a refund suit following the payment of FUTA taxes. E. g., Christian Echoes National Ministry, Inc. v. United States, 470 F. 2d 849 (CA10 1972), cert. denied, 414 U. S. 864 (1973). We therefore conclude that there are no valid reasons to distinguish this case from Williams Packing for purposes of § 7421 (a) or to' exempt respondent’s suit from the dual requirements enunciated in that case. The judgment is reversed. It is so ordered. Mr. Justice Douglas took no part in the decision of this case. The predecessor provision of Code §501 (c)(3) was-§101(6) of the Internal Revenue Code of 1939. Section 501 (c) (3) describes the following as organizations exempt from federal income taxes by-virtue of § 501 (a): “Corporations, and any, community chest, fund, or foundation, organized and operated exclusively for religion’s, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (includifig the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.” The predecessor provision of § 170 (c) (2) of ther Code was § 23 (o) (2) of the Internal Revenue Code of 1939. Section 170 (c)(2) defines a “charitable contribution” for purposes of § 170 (a), the charitable deduction; provision, to mean a contribution or gift to or for the use of:. “A corporation, trust, or community chest, fund, or foundation— “(A) created or organized in the United States or in any possession thereof, or under the law of the United States, any State, the District of Columbia, or'any possession of the United States; ■ “(B) organized and operated exclusively for religious, charitable; scientific, literary, or educational purposes or for the prevention of cruelty to children or animals; “(C) no part of the net earnings of which inures to the benefit of any private shareholder or individual; and “(D) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), .any political campaign on behalf of any candidate for public office.” The differences between the requirements of §§501 (c)(3) and 170 (c) (2) are minor and are not involved in this litigation. Section 501 (e)(4) lists the following organizations as qualifying under the §501 (a) exemption from federal income taxes: . “Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to ■the employees of a designated person or persons in a particular municipality,- and the net earnings of- which are devoted exclusively to charitable, educátional, or recreational purposes.” See Code §3306 (c)(8), 26 U. S. C. §3306 (c)(8). Respondent began paying' FUTA taxes in February 1970 and has stated its willingness to continue to do so in light of its relatively insubstantial liability for such taxes. The Service reports that respondent paid $981.13 in FUTA taxes for the year Í969, $1,052.60 for 1970, $889.09 for 1971, and $1,131.36 for 1972. Brief for Petitioner 4 n. 2. Ordinarily, respondent’s shift from §501 (c)(3) status to §501 (c)(4) status would also have meant that it would become subject to federal social security (FICA) taxes, since § 501 (c) (3) organizations are exempt from such taxes but § 501 (c) (4) organizations are not. Code § 3121 (b) (8) (B), 26 U. S. C. § 3121 (b) (8) (B). This distinction is not involved here’, however, because respondent in prior ’ years voluntarily elected to pay FICA taxes although it held § 501 (c) (3) status. This election had been in effect for more than eight years, which rendered respondent incapable of terminating its election to pay FICA taxes even if it had retained its §501 (c)(3) status. Code §3121 (k)(l)(D), 26 U. S. C. §3121 (k)(l)(D). Federal jurisdiction, was founded on 28 U. S. C. §§1331 and 1340 and on § 10 of the Administrative Procedure Act, now 5 U. S. C. §§ 701-706. The amended complaint identified five claims: (1) that the lobbying proscriptions of §§ 501 (c) (3) and 170 (c) (2) (D) and the Service’s administration of them were unconstitutional due to the restrictions imposed on the exercise of First Amendment rights of political advocacy by respondent and its contributors; (2) that the “substantial part” test of these provisions denied equal protection of the laws in conflict with the Due Process Clause of the Fifth Amendment, by allowing large tax-exempt organizations to engage in a greater quantum of lobbying activity than is. allowed to smaller organizations; (3) that this disparity in the absolute amounts of lobbying activity allowed large and small § 501 (c) (3) organizations enabled certain large churches to engage in more lobbying in favor of government aid to church schools than respondent could bring to bear in opposition, thereby violating the plaintiffs’ rights under the Establishment and Free Exercise Clauses of the First Amendment; (4) that the statutory standards of “substantial part” and “propaganda” were so lacking in specificity that they constituted an invalid delegation of legislative power to the Service; and (5) that the Service acted arbitrarEy and capriciously in revoking respondent’s § 501 (c)(3) exemption. The last two contentions apparently were not advanced in the Court of Appeals. There the argument centered on the.“discriminatory” aspects of the “substantial part” test identified above as claim (2). Specifically, respondent and its coplaintiffs sought to have the exemption clauses of § 501 (c) (3) severed from the remainder cf that section and declared unconstitutional. The federal tax exception to the Declaratory Judgment Act .appears in 28 U. S. C. § 2201: “In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of thé United States, upon the filing of an appropriate pleading, may -declare the rights, and other legal relations of any interested party seeking such declaration, whether or not relief is or could bé sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.” (Emphasis added.) The Anti-Injunction Act (Income Tax Assessment) is set forth in Code § 7421. (a), 26 U. S. C. § 7421 (a): “Except as provided in sections 6212 (a) and (c), 6213 (a), and 7426 (a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court .by any person, -whether, or not such person is the person against' whom such tax was assessed.”- None of the exceptions is relevant to this case. The Court of Appeals also held that the scope of the “except with respect to Federal taxes” clause of the Declaratory Judgment Act, see n. 8,' supra, is coterminous with the Anti-Injunction Act ban against suits “for the purpose of restraining the assessment or collection of any tax” despite the broader phrasing of the former provision. 155 U. S. App. D. C. 284, 291, 477 F. 2d 1169, 1176. While we take no position on this issue, it is in any event clear that the federal tax exception to the Declaratory Judgment Act is at least as broad as the prohibition of the Anti-Injunction Act. Because we hold that the latter Act bars the instant suit, there is no occasion to deal separately with the former. See Bob Jones University v. Simon, ante, at 732-733, n. 7. The portion of § 7421 (a) beginning with “by any person” was addéd to the Act in 1966. See Bob Jones University v. Simon, ante, at 731-732, n. 6. As we noted there, however, the “by any person” phrase reaffirms the plain meaning of the original language of the Act. Alternatively, this suit was intended to reassure private foundations that they could make contributions to respondent without risk of tax liability under Code § 4945 (d) (5), 26 U. S. C. § 4945 (d) (5). In this respect, the purpose of this action was to restrain the assessment of taxes against such foundations. That respondent has voluntarily paid FUTA taxes rather than challenging their imposition via a refund suit does not alter this conclusion. A taxpayer cannot render an available review procedure an inadequate remedy at law by voluntarily forgoing it. See Graham v. Du Pont, 262 U. S. 234 (1923). It should also be noted' that this case cannot be distinguished from Bob Jones, ante, p.- 725, on the ground that petitioner in that case in theory will be subject to federal income faxes upon termination of its §501 (c)(3) status, whereas respondent in this case will not, given that it has established § 501 (c) (4) status. Refund suits for federal income taxes and for FUTA (or FICA) taxes are fungible in the present context. So long as the imposition of a federal tax, without regard to its nature, follows 'froim the Service’s withdrawal of § 501 (c) (3) status, a refund suit following the" collection of that tax is an appropriate vehicle for litigating the legality of the Service’s actions iinder §501 (c)(3). As noted in Bob Jonesl ante, at 748 n. 22, we.need not decide now the range of remedies available, in such a refund suit, which,- unlike this suit, is brought pursuant to congressiónalfy authorized procedures. We think our reading of § 7421 (a) is compelled by the language and apparent congressional purpose uf this statute. The consequences of the present regime for §’501 (c)(3) organizations can be harsh indeed, as Mr, Justice Blackmun ably articulates in his dissenting'opinion today. As we noted in Bob Jones, ante, at 749-750, this may well be a subject meriting congressional consideration.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
SEABOARD AIR LINE RAILROAD CO. v. DANIEL, ATTORNEY GENERAL, et al. No. 390. Argued January 8, 1948. Decided February 16, 1948. W. R. C. Cocke argued the cause for appellant. With him on the brief were J. B. S. Lyles, Harold J. Gallagher, Leonard D. Adkins and James B. McDonough, Jr. Irvine F. Belser, Assistant Attorney General of South Carolina, argued the cause for appellees. With him on the brief were John M. Daniel, Attorney General, and T. C. Callison, Assistant Attorney General. Mb. Justice Black delivered the opinion of the Court. The constitution and statutes of South Carolina provide that railroad lines within that State can be owned and operated only by state-created corporations; a railroad corporation chartered only under the laws of another state is forbidden under heavy penalties to exercise such powers within South Carolina. There is a way, however, in which a foreign railroad corporation may, under South Carolina statutes, indirectly exercise some powers over its South Carolina operations. It may organize a South Carolina subsidiary. In addition, it may, under South Carolina law, consolidate that corporation with itself. In that event, so far as South Carolina statutes can govern, the consolidated result would be a corporation both of South Carolina and of another state. In 1946 the appellant, Seaboard Air Line Railroad Company, with the approval of the Interstate Commerce Commission, succeeded to the ownership and operation of a unitary railroad system with 4,200 railway miles in six southern states. Seven hundred and thirty-six miles of its lines traverse South Carolina connecting with its lines in adjoining states. Appellant is a Virginia created corporation, has no South Carolina subsidiary, and has effected no consolidation with a South Carolina created corporation. It is therefore subject to the penalties provided by South Carolina law if that law can validly be applied to it. This action was brought by appellant in the South Carolina Supreme Court to enjoin the state attorney general from attempting to collect the statutory penalties from appellant or to enforce the statutory provisions against it. The complaint alleged the following facts, about which there is no substantial dispute. Appellant applied to the Interstate Commerce Commission for approval of its purchase of the railway system pursuant to § 5 of the Interstate Commerce Act, as amended, 49 U. S. C. § 5. After notice to the Governor of South Carolina and others, the Commission conducted hearings and made a report in which it found that compliance by appellant with the South Carolina railroad corporation laws would result in “substantial delay and needless expense.” It further found that compliance “would not be consistent with the public interest” — the criterion which § 5 required the Commission to use in passing upon a change in ownership or control of a railroad. The Commission then entered an order which authorized appellant, as a Virginia corporation, to own and operate the entire system including the South Carolina mileage. The complaint also asserted that the order, by explicit reference to the Commission finding in its report, affirmatively authorized appellant to own and operate the entire railway system without complying with the South Carolina railroad corporation laws. The answer to the complaint did not challenge the constitutional power of Congress to relieve appellant of compliance with South Carolina’s requirements of state incorporation. It took the position that insofar as the Commission order could be interpreted as an attempt to override state laws in this respect it was void because outside the scope of the Commission’s statutory authority. The appellant then filed a demurrer on the ground that the answer as a matter of law constituted neither a defense nor a counterclaim since it admitted all allegations of fact in the complaint, and advanced nothing more than erroneous legal conclusions as asserted reasons why appellant should not be granted the relief for which it prayed. No evidence was taken and the State Supreme Court decided the case on the pleadings. That court construed the Commission’s order as relieving appellant from compliance with the statutory and constitutional provisions in issue, but it agreed with the respondents that the Commission lacked power under § 5 to enter such an order. Accordingly the State Supreme Court revoked the temporary restraining order it had previously issued, denied the requested injunction, and dismissed the complaint. 211 S. C. 122, 43 S. E. 2d 839. The case is properly here on appeal under § 237 (a) of the Judicial Code, as amended, 28 U. S. C. § 344 (a). First. The complaint largely relied on an order of the Interstate Commerce Commission as a basis for the relief sought. The answer questioned the validity and scope of that order but did not seek a decree to set it aside or suspend it. Federal district courts have exclusive jurisdiction of suits to enjoin, set aside, annul or suspend an order of the Commission. In such suits the United States is an indispensable party. 28 U. S. C. § 46. Although the jurisdiction of the South Carolina Supreme Court was there conceded, and is not here challenged, we think it appropriate to pass upon it. So far as the appellant’s complaint is concerned, this is not the kind of action to “set aside” a Commission order of which the federal district courts have exclusive jurisdiction. While the action does involve the scope and validity of a Commission order, the relief requested in the complaint was the removal of an obstruction to the railroad’s obedience to the order, not its suspension or annulment. Nor did the answer seek to have the enforcement of the order enjoined, although it did question its validity as a basis for the relief sought in the complaint. The appellant was in this dilemma. Federal law required it to obey the order so long as it remained in effect; for a failure to abide by its terms serious federal penalties could be imposed on it. 49 U. S. C. §§ 10 (1), 16 (7), (8), (9), (10). On the other hand, South Carolina statutes provided penalties for obedience to the order, which South Carolina officials asserted were enforceable against appellant despite the Commission’s order. There was thus a bona fide controversy between appellant and the state officials over the validity of the order. Appellant wanted to obey the order; the state officials insisted appellant must obey their statutes instead. Federal district courts have not been granted special jurisdiction to review and confirm orders of the Commission at the suit of railroads wishing to obey such orders. Under the foregoing circumstances appellant was not compelled to wait until someone who had standing to attack the Commission’s order might decide to seek its annulment in a federal district court. It properly sought relief from a court which could obtain jurisdiction of the parties whose refusal to recognize the order gave rise to its predicament. And the state court then had power, because of the issues raised by the complaint and because of the relief requested, to determine whether the order, properly interpreted, did exempt appellant from compliance with the state railroad corporation laws and, if so, whether the Commission had transcended its statutory authority in making the order. Illinois Cent. R. Co. v. Public Utilities Comm’n, 246 U. S. 493, 502-505. See Lambert Run Coal Co. v. Baltimore & O. R. Co., 258 U. S. 377, 381-382; Central New England R. Co. v. Boston & A. R. Co., 279 U. S. 415, 420-421. Second. It is here contended that the Commission’s order did not manifest a clear purpose to authorize the exemption of appellant from obedience to the state’s domestic corporation policy. We have no doubt that the Commission intended its order to have this effect. Its final order expressly stated that, subject to a condition not here relevant, it approved and authorized “the purchase . . . and the operation” by the appellant of the South Carolina and other railroad properties. Furthermore, the Commission discussed the South Carolina requirements in its report and therein made findings that compliance by appellant with them “would not be consistent with the public interest.” These references were made to the South Carolina provisions, according to the Commission’s report, in response to the appellant’s suggestion that it would “avoid complications” if the Commission’s report showed “on its face that our order is intended to override them.” Third. Respondents contend that the Commission lacked statutory authority to enter an order which would permit a Virginia corporation to operate these railroad lines in and through South Carolina contrary to that state’s constitutional and legislative policy. They point to the broad powers states have always exercised in excluding foreign corporations and in admitting them within their borders upon conditions. They also emphasize the importance of this regulatory power to the states, and urge that, in the absence of express language requiring it, § 5 should be construed neither to restrict that state power nor to authorize the Commission to override state enactments. Recognizing the force of these arguments in general, we note the following circumstances which render them inapplicable in this case. Congress has long made the maintenance and development of an economical and efficient railroad system a matter of primary national concern. Its legislation must be read with this purpose in mind. In keeping with this purpose Congress has often recognized that the nation’s railroads should have sound corporate and financial structures and has taken appropriate steps to this end. The purchase of this very railroad by appellant resulted from extensive reorganization proceedings conducted by the Interstate Commerce Commission and federal district courts in accordance with congressional enactments applicable to railroads. In furtherance of this congressional policy these agencies approved reorganization plans which called for the purchase and operation of these properties, including the portion in South Carolina, by appellant, as a Virginia corporation. This Court has previously approved a Commission order entered in a § 5 consolidation proceeding which granted a railroad relief from state laws analogous to the state requirements here. Texas v. United States, 292 U. S. 522 (1934). Most of the reasons which justified the Commission’s order in that case are equally applicable here. Furthermore, since that case was decided Congress has given additional proof of its purpose to grant adequate power to the Commission to override state laws which may interfere with efficient and economical railroad operation. By § 5 (11) of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 908, 49 U. S. C. § 5 (11), Congress granted the Commission “exclusive and plenary” authority in refusing or approving railroad consolidations, mergers, acquisitions, etc. The breadth of this grant of power can be understood only by reference to § 5 (2) (b) which authorizes the Commission to condition its approval upon “such terms and conditions and such modifications as it shall find to be just and reasonable.” All of this power can be exercised in accordance with what the Commission may find to be “consistent with the public interest.” The purchaser of railroad property with Commission approval is authorized by § 5 (11) “to own and operate any properties . . . acquired through said transaction without invoking any approval under State authority,” and such an approved owner, according to that paragraph, is “relieved from the operation of the antitrust laws and of all other restraints, limitations, and prohibitions of law, Federal, State, or municipal, insofar as may be necessary to enable them to carry into effect the transaction so approved . . . and to hold, maintain, and operate any properties . . . acquired through such transaction.” This language very clearly reposes power in the Commission to exempt railroads under a § 5 proceeding from state laws which bar them from operating in the state or impose conditions upon such operation. The state court nevertheless thought that the last sentence of § 5 (11) negatived a congressional purpose to empower the Commission to relieve railroads from state laws such as South Carolina’s. That sentence reads: “Nothing in this section shall be construed to create or provide for the creation, directly or indirectly, of a Federal corporation, but any power granted by this section to any carrier or other corporation shall be deemed to be in addition to and in modification of its powers under its corporate charter or under the laws of any State.” We see nothing in this sentence that detracts from the broad powers granted the Commission by § 5. In fact, the language of the sentence appears to support the Commission’s power here exercised. Although the sentence bars creation of a federal corporation, it clearly authorizes a railroad corporation to exercise the powers therein granted over and above those bestowed upon it by the state of its creation. These federally conferred powers can be exercised in the same manner as though they had been granted to a federally created corporation. See California v. Central Pacific R. Co., 127 U. S. 1, 38, 40-45. Here, just as a federally created railroad corporation could for federal purposes operate in South Carolina, so can this Virginia corporation exercise its federally granted power to operate in that State. Other arguments of respondent have been considered and found to be without merit. Appellant is entitled to the injunction it sought. The judgment of the South Carolina Supreme Court denying the injunction and dismissing the complaint is reversed, and the cause is remanded to that court for proceedings not inconsistent with this opinion. Reversed and remanded. S. C. Const. Art. 9, § 8; S. C. Code Ann. § 7784 (1942). Violations are punishable by fines of $500 for each county in which the railroad operates. Apparently each day’s operation of the railroad constitutes a separate offense. The appellant in this suit operates in 30 South Carolina counties. S. C. Const. Art. 9, §8; S. C. Code Ann. §§7777, 7778, 7779, 7785, 7789 (1942). See Geraty v. Atlantic Coast Line R. Co., 80 S. C. 355, 361, 60 S. E. 936, 937. The appellant also prayed for a mandamus to compel the Secretary of State to accept and file papers and documents tendered by appellant seeking authority to do business in the state as a foreign corporation under other South Carolina statutes. That phase of the case is not pressed here. The complaint also alleged, and it is argued here, that the state constitutional and statutory provisions imposed burdens on this interstate railroad in violation of the Commerce Clause of the Constitution of the United States. The view we take makes it unnecessary for us to pass on this contention.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 65 ]	sc_adminaction
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. YUCKERT No. 85-1409. Argued January 13, 1987 Decided June 8, 1987 Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, O’ConnoR, and Scalia, JJ., joined. O’Con-NOR, J., filed a concurring opinion, in which Stevens, J., joined, post, p. 155. Blackmun, J., filed a dissenting opinion, in which Beennan and MARSHALL, JJ., joined, post, p. 159. Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, and Deputy Solicitor General Wallace. Carole F. Grossman argued the cause for respondent. With her on the brief were James A. Douglas and Peter Komlos-Hrobsky. Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Robert Abrams, Attorney General of New York, 0. Peter Sherwood, Solicitor General, Charles A. Graddick, Attorney General of Alabama, Harold M. Brown, Attorney General of Alaska, John Steven Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, Jim Smith, Attorney General of Florida, Corinne K. A. Watanabe, Attorney General of Hawaii, Neil F. Hartigan, Attorney General of Illinois, and Roma J. Stewart, Solicitor General, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Edwin Lloyd Pittman, Attorney General of Mississippi, Robert M. Spire, Attorney General of Nebraska, W. Cary Edwards, Attorney General of New Jersey, Paul Bardacke, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael C. Turpén, Attorney General of Oklahoma, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Mark V. Meierhenry, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, Jeffrey L. Amestoy, Attorney General of Vermont, Bronson C. La Follette, Attorney General of Wisconsin, and A. G. McClintock, Attorney General of Wyoming; for the city of New York et al. by Frederick A. 0. Schwarz, Jr., Leonard Koemer, Michael D. Young, Julie Downey, Jessica Heinz, and Judson H. Miner; for the American Association of Retired Persons by Alfred Miller; and for the American Diabetes Association et al. by Frederick M. Stanczak, Richard E. Yaskin, Kalman Finkel, John E. Kirklin, Nancy Morawetz, Robert E. Lehrer, Joseph A. Antolin, and Shelley Davis. Justice Powell delivered the opinion of the Court. The question in this case is whether the Secretary of Health and Human Services may deny a claim for Social Security disability benefits on the basis of a determination that the claimant does not suffer from a medically severe impairment that significantly limits the claimant’s ability to perform basic work activities. h-i Title II of the Social Security Act (Act), 49 Stat. 620, as amended, provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. 42 U. S. C. §423(a)(1)(D) (1982 ed., Supp. III). Title XVI of the Act provides for the payment of disability benefits to indigent persons under the Supplemental Security Income (SSI) program. § 1382(a). Both titles of the Act define “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months....” §423(d)(1)(A). See § 1382c(a)(3)(A). The Act further provides that an individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” §§ 423(d)(2)(A), 1382c(a)(3)(B) (1982 ed. and Supp. III). The Secretary has established a five-step sequential evaluation process for determining whether a person is disabled. 20 CFR §§404.1520, 416.920 (1986). Step one determines whether the claimant is engaged in “substantial gainful activity.” If he is, disability benefits are denied. §§404.1520(b), 416.920(b). If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. That determination is governed by the “severity regulation” at issue in this case. The severity regulation provides: “If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.” §§404.1520(c), 416.920(c). The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” §§404. 1521(b), 416.921(b). Such abilities and aptitudes include “[pjhysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “[c]a-pacities for seeing, hearing, and speaking”; “[understanding, carrying out, and remembering simple instructions”; “[u]se of judgment”; “[Responding appropriately to supervision, coworkers, and usual work situations”; and “[djealing with changes in a routine work setting.” Ibid. If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. §§404.1520(d), 416.920(d); 20 CFR pt. 404, subpt. P, App. 1 (1986). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. §§404.1520(e), 416.920(e). If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work. §§ 404.1520(f), 416.920(f). The initial disability determination is made by a state agency acting under the authority and supervision of the Secretary. 42 U. S. C. §§ 421(a), 1383b(a); 20 CFR §§404.1503, 416.903 (1986). If the state agency denies the disability claim, the claimant may pursue a three-stage administrative review process. First, the determination is reconsidered de novo by the state agency. §§404.909(a), 416.1409(a). Second, the claimant is entitled to a hearing before an administrative law judge (ALJ) within the Bureau of Hearings and Appeals of the Social Security Administration. 42 U. S. C. §§ 405(b)(1), 1383(c)(1) (1982 ed. and Supp. Ill); 20 CFR §§404.929, 416.1429, 422.201 et seq. (1986). Third, the claimant may seek review by the Appeals Council. 20 CFR §§404.967 et seq., 416.1467 et seq. (1986). Once the claimant has exhausted these administrative remedies, he may seek review in federal district court. 42 U. S. C. § 405(g). See generally Bowen v. City of New York, 476 U. S. 467, 472 (1986). II Respondent Janet Yuckert applied for both Social Security disability insurance benefits and SSI benefits in October 1980. She alleged that she was disabled by an inner ear dysfunction, dizzy spells, headaches, an inability to focus her eyes, and flatfeet. Yuckert had been employed as a travel agent from 1963 to 1977. In 1978 and 1979, she had worked intermittently as a real estate salesperson. Yuckert was 45 years old at the time of her application. She has a high school education, two years of business college, and real estate training. The Washington Department of Social and Health Services determined that Yuckert was not disabled. The agency reconsidered Yuckert’s application at her request, and again determined that she was not disabled. At the next stage of the administrative review process, the ALJ found that, although Yuckert suffered from “episodes of dizziness, or vision problems,” App. to Pet. for Cert. 28a, “[m]ultiple tests... failed to divulge objective clinical findings of abnormalities that support the claimant’s severity of the stated impairments.” Id., at 27a. The ALJ also found that Yuckert was pursuing a “relatively difficult” 2-year course in computer programming at a community college and was able to drive her car 80 to 90 miles each week. Id., at 27a-28a. In light of the medical evidence and the evidence of her activities, the ALJ concluded that her medically determinable impairments were not severe under 20 CFR §§404.1520(c) and 416.920(c) (1986). The Appeals Council denied Yuckert’s request for review on the ground that the results of additional psychological tests supported the ALJ’s finding that she had not suffered a significant impairment of any work-related abilities. App. to Pet. for Cert. 22a. Yuckert then sought review in the United States District Court for the Western District of Washington. The case was referred to a Magistrate, who concluded that the Secretary’s determination was supported by substantial evidence. The District Court adopted the Magistrate’s report and affirmed the denial of Yuckert’s claim. Id., at 14a. The United States Court of Appeals for the Ninth Circuit reversed and remanded without considering the substan-tiality of the evidence. Yuckert v. Heckler, 774 F. 2d 1365, 1370 (1985). The court held that the Act does not authorize the Secretary to deny benefits on the basis of a determination that the claimant is not severely impaired. The court focused on the statutory provision that a person is disabled “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial, gainful work... 42 U. S. C. § 423(d)(2)(A) (1982 ed. and Supp. III). In the court’s view, this provision requires that “both medical and vocational factors \i. e., age, education, and work experience] be considered in determining disability.” Yuckert v. Heckler, 774 F. 2d, at 1370. The court rejected the Secretary’s contention that the 1984 amendments to the Act endorsed step two of the disability evaluation process. The court concluded that “[t]he legislative history does not suggest that Congress intended to permit findings of non-disability based on medical factors alone.” Ibid, (citation omitted). Finally, the court relied upon Court of Appeals holdings that the burden of proof shifts to the Secretary once the claimant shows an inability to perform his previous work. In the court’s view, step two of the Secretary’s evaluation process is inconsistent with this assignment of burdens of proof, because it allows the Secretary to deny benefits to a claimant who is unable to perform past work without requiring the Secretary to show that the claimant can perform other work. Accordingly, the court invalidated the severity regulation, 20 CFR §404.1520(c) (1986). Because of the importance of the issue, and because the court’s decision conflicts with the holdings of other Courts of Appeals, we granted certiorari. 476 U. S. 1114 (1986). We now reverse. H-i H-i H-i Our prior decisions recognize that “Congress has ‘conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the Act.’” Heckler v. Campbell, 461 U. S. 458, 466 (1983) (quoting Schweiker v. Gray Panthers, 453 U. S. 34, 43 (1981)). The Act authorizes the Secretary to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same” in disability cases. 42 U. S. C. § 405(a). We have held that “[w]here, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, our review is limited to determining whether the regulations promulgated exceeded the Secretary’s statutory authority and whether they are arbitrary and capricious.” Heckler v. Campbell, supra, at 466 (footnote and citations omitted). In our view, both the language of the Act and its legislative history support the Secretary’s decision to require disability claimants to make a threshold showing that their “medically determinable” impairments are severe enough to satisfy the regulatory standards. A As noted above, the Social Security Amendments Act of 1954 defined “disability” as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... 68 Stat. 1080, 42 U. S. C. § 423(d)(1)(A). The severity regulation requires the claimant to show that he has an “impairment or combination of impairments which significantly limits” “the abilities and aptitudes necessary to do most jobs.” 20 CFR §§ 404.1520(c), 404.1521(b) (1986). On its face, the regulation is not inconsistent with the statutory definition of disability. The Act “defines ‘disability’ in terms of the effect a physical or mental impairment has on a person’s ability to function in the workplace.” See Heckler v. Campbell, supra, at 459-460. The regulation adopts precisely this functional approach to determining the effects of medical impairments. If the impairments are not severe enough to limit significantly the claimant’s ability to perform most jobs, by definition the impairment does not prevent the claimant from engaging in any substantial gainful activity. The Secretary, moreover, has express statutory authority to place the burden of showing a medically determinable impairment on the claimant. The Act provides that “[a]n individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” § 423(d)(5)(A) (1982 ed. and Supp. III). See Mathews v. Eldridge, 424 U. S. 319, 336 (1976). The requirement of a threshold showing of severity also is consistent with the legislative history of § 423(d)(1)(A). The Senate Report accompanying the 1954 Amendments states: “The physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantial gainful work. Standards for evaluating the severity of disabling conditions will be worked out in consultation with the State agencies.” S. Rep. No. 1987, 83d Cong., 2d Sess., 21 (1954). House Rep. No. 1698, 83d Cong., 2d Sess., 23 (1954), contains virtually identical language. Shortly after the 1954 Amendments were enacted, the Secretary promulgated a regulation stating that “medical considerations alone may justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other similar abnormality or combination of slight abnormalities.” 20 CFR §404.1502(a) (1961). This regulation, with minor revisions, remained in effect until the sequential evaluation regulations were promulgated in 1978. B The Court of Appeals placed little weight on § 423(d)(1)(A) or its legislative history, but concluded that the severity regulation is inconsistent with § 423(d)(2)(A). We find no basis for this holding. Section 423(d)(2)(A), set forth supra, at 140, was enacted as part of the Social Security Amendments of 1967, 81 Stat. 868. It states that “an individual... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work... Ibid. The words of this provision limit the Secretary’s authority to grant disability benefits, not to deny them. Section 423(d)(2)(A) restricts eligibility for disability benefits to claimants whose medically severe impairments prevent them from doing their previous work and also prevent them from doing any other substantial gainful work in the national economy. If a claimant is unable to show that he has a medically severe impairment, he is not eligible for disability benefits. In such a case, there is no reason for the Secretary to consider the claimant’s age, education, and work experience. The legislative history reinforces this understanding of the statutory language. Section 423(d)(2)(A) was intended to “reemphasize the predominant importance of medical factors in the disability determination.” S. Rep. No. 744, 90th Cong., 1st Sess., 48 (1967). The 1967 Amendments left undisturbed the longstanding regulatory provision that “medical considerations alone may justify a finding that the individual is not under a disability.” 20 CFR §404.1502(a) (1966). Indeed, it is clear that Congress contemplated a sequential evaluation process: “The bill would provide that such an individual would be disabled [i] only if it is shown that he has a severe medically determinable physical or mental impairment or impairments; [ii] that if, despite his impairment or impairments, an individual still can do his previous work, he is not under a disability; and [iii] that if, considering the severity of his impairment together with his age, education, and experience, he has the ability to engage in some other type of substantial gainful work that exists in the national economy even though he can no longer do his previous work, he also is not under a disability... S. Rep. No. 744, supra, at 48-49. See H. R. Rep. No. 544, 90th Cong., 1st Sess., 30 (1967). C If there was any lingering doubt as to the Secretary’s authority to require disability claimants to make a threshold showing of medical severity, we think it was removed by § 4 of the Social Security Disability Benefits Reform Act of 1984, 98 Stat. 1800. It is true that “ ‘[t]he Reform Act is remedial legislation, enacted principally to be of assistance to large numbers of persons whose disability benefits have been terminated.”’ Bowen v. City of New York, 476 U. S., at 486, n. 14 (quoting City of New York v. Heckler, 755 F. 2d 31, 33 (CA2 1985)). But Congress nevertheless expressed its approval of the severity regulation both in the statute and in the accompanying Reports. Sections 4(a)(1) and (b) of the 1984 Act provide: “In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Secretary shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined effect of the impairments shall be considered throughout the disability determination process.” 42 U. S. C. §§ 423(d)(2)(C), 1382c(a)(3)(F) (1982 ed. and Supp. III). Congress thus recognized once again that the Secretary may make an initial determination of medical severity, and that he need not consider the claimant’s age, education, and experience unless he finds “a medically severe combination of impairments.” The Senate Report accompanying the 1984 amendments expressly endorses the severity regulation. “[T]he new rule [requiring consideration of the combined effects of multiple impairments] is to be applied in accordance with the existing sequential evaluation process and is not to be interpreted as authorizing a departure from that process.... The amendment requires the Secretary to determine first, on a strictly medical basis and without regard to vocational factors, whether the individual’s impairments, considered in combination, are medically severe. If they are not, the claim must be disallowed. Of course, if the Secretary does find a medically severe combination of impairments, the combined impact of the impairments would also be considered during the remaining stages of the sequential evaluation process.” S. Rep. No. 98-466, p. 22 (1984). The House Report agrees: “[I]n the interests of reasonable administrative flexibility and efficiency, a determination that a person is not disabled may be based on a judgment that the person has no impairment, or that the impairment or combination of impairments [is] slight enough to warrant a presumption that the person’s work ability is not seriously affected. The current ‘sequential evaluation process’ allows such a determination, and the committee does not wish to eliminate or seriously impair use of that process.” H. R. Rep. No. 98-618, p. 8 (1984). Finally, the Conference Report stated: “[I]n the interests of reasonable administrative flexibility and efficiency, a determination that an individual is not disabled may be based on a judgment that an individual has no impairment, or that the medical severity of his impairment or combination of impairments is slight enough to warrant a presumption, even without a full evaluation of vocational factors, that the individual’s ability to perform [substantial gainful activity] is not seriously affected. The current ‘sequential evaluation process’ allows such a determination and the conferees do not intend to either eliminate or impair the use of that process.” H. R. Conf. Rep. No. 98-1039, p. 30 (1984). HH <1 We have recognized that other aspects of the Secretary’s sequential evaluation process contribute to the uniformity and efficiency of disability determinations. Heckler v. Campbell, 461 U. S., at 461. The need for such an evaluation process is particularly acute because the Secretary decides more than 2 million claims for disability benefits each year, of which more than 200,000 are reviewed by administrative law judges. Department of Health and Human Services, Social Security Administration 1986 Annual Report to Congress, pp. 40, 42, 46. The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account. Similarly, step three streamlines the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background. Respondent Yuckert has conceded that the Secretary may require claimants to make a “de minimis” showing that their impairment is severe enough to interfere with their ability to work. Brief for Respondent 22-23; Tr. of Oral Arg. 30. Yuckert apparently means that the Secretary may require a showing that the “impairment is so slight that it could not interfere with [the claimant’s] ability to work, irrespective of age, education, and work experience.” Brief for Respondent 22. She contends that the Secretary imposed only a “de minimis” requirement prior to 1978, but has required a greater showing of severity since then. As we have noted, however, Congress expressly approved the facial validity of the 1978 severity regulation in the 1984 amendments to the Act. Particularly in light of those amendments and the legislative history, we conclude that the regulation is valid on its face. V The judgment of the Court of Appeals for the Ninth Circuit is reversed. The case is remanded for the Court of Appeals to consider whether the agency’s decision is supported by substantial evidence. It is so ordered. Yuckert’s physician diagnosed her condition as bilateral labyrinthine dysfunction. App. to Pet. for Cert. 26a. Another physician found only “non-specific congestion of the nasal and middle ear mucous membranes.” Ibid. X rays, an electrocardiogram, and a spinal puncture revealed no abnormalities. Id., at 27a. E. g., Valencia v. Heckler, 751 F. 2d 1082, 1086-1087 (CA9 1985); Francis v. Heckler, 749 F. 2d 1562, 1564 (CA11 1985). Although Yuckert had applied for SSI benefits as well as disability insurance benefits, the complaint she filed in District Court referred only to the disability insurance program of Title II. Accordingly, the Court of Appeals did not invalidate 20 CFR § 416.920(c) (1986), the severity regulation applicable to the SSI program. Some Courts of Appeals have upheld the facial validity of the severity regulation. McDonald v. Secretary of Health and Human Services, 795 F. 2d 1118, 1121-1126 (CA1 1986); Hampton v. Bowen, 785 F. 2d 1308, 1311 (CA5 1986); Farris v. Secretary of Health and Human Services, 773 F. 2d 85, 89-90 (CA6 1985); Flynn v. Heckler, 768 F. 2d 1273, 1274-1275 (CA11 1985) (per curiam). Others have joined the Court of Appeals for the Ninth Circuit in holding the severity regulation invalid on its face. Wilson v. Secretary of Health and Human Services, 796 F. 2d 36, 40-42 (CA3 1986); Johnson v. Heckler, 769 F. 2d 1202, 1209-1213 (CA7 1985); Brown v. Heckler, 786 F. 2d 870, 871-872 (CA8 1986); Hansen v. Heckler, 783 F. 2d 170, 174-176 (CA10 1986). The severity regulation does not change the settled allocation of burdens of proof in disability proceedings. It is true, as Yuckert notes, that the Secretary bears the burden of proof at step five, which determines whether the claimant is able to perform work available in the national economy. But the Secretary is required to bear this burden only if the sequential evaluation process proceeds to the fifth step. The claimant first must bear the burden at step one of showing that he is not working, at step two that he has a medically severe impairment or combination of impairments, and at step four that the impairment prevents him from performing his past work. If the process ends at step two, the burden of proof never shifts to the Secretary. Similarly, if the impairment is one that is conclusively presumed to be disabling, the claimant is not required to bear the burden of showing that he is unable to perform his prior work. See Bluvband v. Heckler, 730 F. 2d 886, 891 (CA2 1984). This allocation of burdens of proof is well within the Secretary’s “exceptionally broad authority” under the statute. Schweiker v. Gray Panthers, 453 U. S. 34, 43 (1981). It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so. According to the dissent our opinion implies that the Secretary has unlimited authority to deny meritorious claims. Post, at 160, n. 1. It hardly needs saying that our opinion carries no such implication. Justice Blackmun’s dissent argues that a “straightforward reading” of the statute requires the Secretary expressly to consider the age, education, and work experience of any claimant who is unable to perform his past work, and who is able to show a medically determinable impairment, however trivial. Post, at 163. The dissent’s reading would make the severity of the claimant’s medical impairment turn on nonmedical factors such as education and experience. For example, the dissent asserts that the Court’s “reasoning begs the very question presented for resolution today— whether the severity of a claimant’s medical impairment can be discerned without reference to the individual’s age, education, and work experience.” Post, at 168, n. 7 (emphasis added). Moreover, the dissent ignores the fact that, below a threshold level of medical severity, an individual is not prevented from engaging in gainful activity “by reason of” the physical or mental impairment. 68 Stat	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 105 ]	sc_adminaction
ATCHISON, TOPEKA & SANTA FE RAILWAY CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al. NO. 22. Argued October 14, 1953. Decided November 9, 1953. Douglas F. Smith argued the cause for appellant in No. 22 and Burton Mason argued the cause for appellant in No. 43. With them on a joint brief were Jonathan C. Gibson, R. S. Outlaw, Robert W. Walker, Kenneth F. Burgess and Arthur R. Seder, Jr. for appellant in No. 22, and George L. Buland, B. J. Foulds and Randolph Karr for appellant in No. 43. Roger Arnebergh argued the cause for appellees in No. 22. With him on the briefs were Bourke Jones for the City of Los Angeles, appellee in that case, and Henry McClernan and John H. Lauten for the City of Glendale in No. 43. Ray L. Chesebro was also with them on statements opposing jurisdiction and motions to dismiss or affirm. Hal F. Wiggins argued the cause for appellees in No. 43. With him on the briefs was Everett C. McKeage for the Public Utilities Commission. Mr. Justice Minton delivered the opinion of the Court. These cases present the same questions of law and will be disposed of together. The Public Utilities Commission of California entered orders authorizing the construction of certain grade separation improvements and allocating the costs therefor, pursuant to § 1202 of the Public Utilities Code of California. On petitions to the Supreme Court of California, that court denied review of the Commission’s orders, and these appeals followed. We postponed jurisdiction until a hearing on the merits. We think the Commission’s orders must be treated as an act of the legislature for purposes of determining our jurisdiction under 28 U. S. C. § 1257 (2). Live Oak Water Users’ Assn. v. Railroad Commission, 269 U. S. 354, 356; Lake Erie & Western R. Co. v. Public Utilities Commission, 249 U. S. 422, 424. The Commission has construed § 1202 as authorizing these orders. The appellants presented squarely to the Supreme Court of California their contention that in the allocation of costs, these orders take their property without due process of law and are so arbitrary and burdensome as to constitute an interference with interstate commerce, in violation of the Constitution of the United States. In sustaining the Commission’s orders by denying writs of review, the Supreme Court of California upheld the statute as applied by the Commission, and the cases are properly here on appeal. Kansas City S. R. Co. v. Road Improvement District, 256 U. S. 658, 659-660. The principal question presented by these appeals is whether the allocation of the reasonable cost of grade separation improvements is arbitrary as to the railroads unless imposed on the basis of benefits received, or, since the costs are incurred in the exercise of the police power in the interest of public safety, convenience and necessity, may they be allocated on the basis of fairness and reasonableness. No. 22. In this case, the Commission authorized the enlarging of two existing railroad underpasses where the Santa Fe tracks cross Washington Boulevard in Los Angeles. These underpasses were constructed in 1914 under an agreement between the railroad and the City providing that each party was to pay one-half of the cost. The Commission found the structures to be 75% depreciated. When constructed, their chief utility was to facilitate access to a garbage reduction plant. Washington Boulevard is now one of the main east and west thoroughfares of Los Angeles, and other streets and highways feed into it. It is not a part of the State highway system nor is it a freeway. The grade separations concerned here are in one of the principal industrial districts of the City and are a traffic bottleneck. For most of its length, Washington Boulevard is 60 feet wide, but at the site in question, the roadway narrows to 20 feet, with a vertical clearance of less than 14 feet. The City’s easement at this point is 90 feet. As improved, two 33-foot roadways and two 7-foot sidewalks will be provided, and the underpasses will be heightened. The improvement is being made to promote the safety and convenience of the public and to meet vastly increased local transportation needs, made necessary by the rapid growth of the City. In 1910 the City had a population of 102,000, in 1920 of 576,000, and in 1948 of 1,987,000. Los Angeles County’s population in 1910 was 504,000 and in 1948 was over four million. Vehicular traffic in the area has increased tremendously since construction of the present underpasses in 1914. Considering all of these facts and evidence by the railroad that there were no benefits to be derived by the railroad from this improvement, the Commission decided that- there “is a need for widening and increasing the height of the existing underpasses,” and that the preferred plan submitted by the City of Los Angeles “sets out the construction which would be most practicable and best meet the public safety, convenience and necessity in this matter.” The Commission found that $569,355 of the cost was attributable to the presence of the railroad tracks and that the railroad should pay 50% of this amount and the City 50%. No. 43. This case does not differ materially from Case No. 22 except that here a grade crossing will be replaced by an underpass. Los Feliz Boulevard runs in a northeast-southwest direction, crossing at grade five Southern Pacific tracks approximately at the boundary of the cities of Los Angeles and Glendale. The street becomes known as Los Feliz Road in Glendale. Los Feliz is not a part of the State highway system nor is it a freeway, but, like Washington Boulevard, is an access street for adjacent properties and for other streets feeding into it in this congested area and as a through street has reached capacity. When the crossing is blocked by trains, 38 or more vehicles may back up in each of three lanes, causing a “backlash” on San Fernando Road, 820 feet distant. The crossing now has manually-operated crossing gates, and several relatively minor accidents have occurred there during the last 25 years. The plan approved by the Commission passes the street under the railroad tracks, with two 40-foot roadways, separated by a median strip and with 5-foot sidewalks on each side. The structure when completed will be 105 feet wide. The total cost necessitated by the presence of the tracks was estimated at $1,493,200. The Commission ordered that 50% be borne by the railroad, 25% by Los Angeles County, and 12%% each by the cities of Los Angeles and Glendale. Construction of the grade separation was found by the Commission to be “in the interest of public safety, convenience and necessity . ...” In each of these cases, the railroads introduced evidence intended to show that their share of the costs should be based on benefits received and that they would receive little or no benefit from the construction. For the most part, this evidence related to the nature of the traffic on the boulevards, the fact that the improvements are required primarily to facilitate traffic flow on the streets, the “revolution” in transportation that has occurred since the early part of this century and its effect on the reasons for constructing grade separations and on the financial position of railroads, the competition afforded railroads by motor vehicles utilizing the public streets and highways, and the effect of the proposed construction on operation of the railroads. The appellants contended that the costs should be distributed on the basis of benefits, and since the railroads would receive little or no benefits, they should be required to pay only a small part of the costs or nothing, as the case may be. The cities contended in both cases that the railroads should bear all the costs attributable to the presence of the tracks. After lengthy hearings and after considering all the evidence and the arguments advanced, the Commission decided that it was not bound to follow any particular theory in apportioning the costs but may allocate the costs in the exercise of its sound discretion. We do not understand the appellants to contest the right of the Commission to enter the orders or the reasonableness of the estimated costs. Their principal contention is that as to them the cost of the improvements may be distributed only on the basis of benefits which will accrue to their property. In this contention, we think the appellants are in error. These were not improvements whose purpose and end result is to enhance the value of the property involved by reason of the added facilities, such as street, sewer or drainage projects, where the costs assessed must bear some relationship to the benefits received. Chesebro v. Los Angeles County Dist., 306 U. S. 459; Valley Farms Co. v. Westchester, 261 U. S. 155; Kansas City S. R. Co. v. Road Improvement District, supra; Gast Realty & Investment Co. v. Schneider Granite Co., 240 U. S. 55. - Rather, in the cases at bar, the improvements were instituted by the State or its subdivisions to meet local transportation needs and further safety and convenience, made necessary by the rapid growth of the communities. In such circumstances, this Court has consistently held that in the exercise of the police power, the cost of such improvements may be allocated all to the railroads. Erie R. Co. v. Board, 254 U. S. 394, 409-411; Missouri Pacific R. Co. v. Omaha, 235 U. S. 121, 127; Chicago, M. & St. P. R. Co. v. Minneapolis, 232 U. S. 430, 441; Cincinnati, I. & W. R. Co. v. Connersville, 218 U. S. 336, 344. There is the proper limitation that such allocation of costs must be fair and reasonable. Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415, and the cases there cited. This was the standard applied by the Commission. It was not an arbitrary exercise of power by the Commission to refuse to allocate costs on the basis of benefits alone. The railroad tracks are in the streets not as a matter of right but by permission from the State or its subdivisions. The presence of these tracks in the streets creates the burden of constructing grade separations in the interest of public safety and convenience. Having brought about the problem, the railroads are in no position to complain because their share in the cost of alleviating it is not based solely on the special benefits accruing to them from the improvements. The appellants rely heavily on the Nashville case, supra, but that decision is in accord with the long-established rule which we here follow and which the Commission applied. As this Court said in the Nashville case: “The claim of unconstitutionality rests wholly upon the special facts here shown.” P. 413. In that case, the railroad’s share of the cost was fixed at 50% by a Tennessee statute and no consideration was given by the Supreme Court of Tennessee as to whether the application of the statutory amount was unreasonable under the special facts advanced. The grade separation ordered in the Nashville case was located in the rural community of Lexington, Tennessee, which had a population in 1910 of 1,497, in 1920 of 1,792, and in 1930 of 1,823. The improvement was not required to meet the transportation needs of Lexington and was being constructed without regard to that community’s growth or to considerations of public safety and convenience resulting from such growth. The highway there under improvement was part of the State highway system and the grade was to be removed primarily as part of economic and engineering planning and to qualify the improvement of the highway for federal aid. Other facts offered pointed principally to the state and nation-wide nature of the highway system and the particular highway there involved, the competition afforded railroads by the users of such highways and the effect of such competition on the revenues of the railroads, and the increasing importance of grade separations as a means of assuring rapid movement of motor vehicles rather than as an exclusively safety measure. As stated by this Court, “[t]he main contention is that to impose upon the Railway, under these circumstances, one-half of the cost is action so arbitrary and unreasonable as to deprive it of property without due process of law in violation of the Fourteenth Amendment.” P. 413. Thus, the contention of the railroad and the rule recognized by this Court in the Nashville opinion was that there could be an allocation of costs subject to the limitation that they be allocated always with regard to the rule against unreasonableness and arbitrariness. The judgment of the Supreme Court of Tennessee was reversed and the case remanded thereto because that court had refused to consider whether the special facts shown “were of such persuasiveness as to have required the state court to hold that the statute and order complained of are arbitrary and unreasonable. That determination should, in the first instance, be made by the Supreme Court of the State.” Pp. 432-433.. In our cases, not only are the facts distinguishable in many material particulars but unlike the Supreme Court of Tennessee which refused to consider the facts to determine whether the statute’s allocation of 50% was arbitrary or unreasonable, the California Commission considered all the evidence offered, including that going to the benefits received, and properly applied the rule of allocation sanctioned by this Court, and the California Supreme Court found no occasion to review the Commission’s orders. There is no showing on these records of arbitrariness or unreasonableness in the Commission’s orders, and none is claimed except as the Commission refused to allocate costs on the basis of benefits received, which we hold it was not required to do. It is next contended that the allocation of grade separation costs against the railroads in excess of benefits received constitutes an undue burden on interstate commerce. We have decided that there is no showing that the orders here under attack were arbitrary or unreasonable. Certainly, if the Commission has the right to order these improvements and has not, in allocating the costs, acted so arbitrarily as to deprive the railroads of their property without due process of law, the fact that the improvements may interfere with interstate commerce is incidental. The construction and use of public streets is a matter peculiarly of local concern and great leeway is allowed local authorities where there is no conflicting federal regulation, even though interstate commerce be subject to material interference. Railway Express Agency v. New York, 336 U. S. 106, 111; South Carolina v. Barnwell Bros., 303 U. S. 177, 187. No conflict with federal regulation is involved here. See Lehigh Valley R. Co. v. Board, 278 U. S. 24, 35. When the appellants went on the streets in question, they assumed the burden of sharing on a fair and reasonable basis the costs of any changes for the reason of public safety and convenience made necessary by the growth of the communities. “To engage in interstate commerce the railroad must get on to the land and to get on to it must comply with the conditions imposed by the State for the safety of its citizens.” Erie R. Co. v. Board, supra, p. 411. The orders of the Commission are not arbitrary or unreasonable and do not deprive the appellants of their property without due process of law, nor do they interfere unreasonably with interstate commerce. The judgments of the Supreme Court of California are Affirmed. The Chief Justice took no part in the consideration or decision of these cases. The final orders may be found at 51 Cal. P. U. C. 771 and 51 Cal. P. U. C. 788. “§ 1202. Exclusive powers of commission. The commission has the exclusive power: “(a) To determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public or publicly used road or highway by a railroad or street railroad, and of a street by a railroad or vice versa, subject to the provisions of Sections 1121 to 1127, inclusive, of the Streets and Highways Code so far as applicable. “(b) To alter, relocate, or abolish by physical closing any such crossing heretofore or hereafter established. “(c) To require, where in its judgment it would be practicable, a separation of grades at any such crossing heretofore or hereafter established and to prescribe the terms upon which such separation shall be made and the proportions in which the expense of the construction, alteration, relocation, or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the State, county, city, or other political subdivision affected.” Deering’s Cal. Pub. TJ. C. A., 1951. 40 Adv. Cal., No. 2, Minutes, 1; 40 Adv. Cal., No. 15, Minutes, 1. 51 Cal. P. U. C. 771, 779. Ibid. 51 Cal. P. U. C. 788, 795.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al. v. ATCHISON, TOPEKA & SANTA FE RAILROAD CO. et al. No. 94-1592. Argued October 30, 1995 Decided January 8, 1996 Kennedy, J., delivered the opinion for a unanimous Court. Lawrence M. Mann argued the cause for petitioners. With him on the briefs were Harold A. Ross and Clinton J. Miller III. Malcolm L. Stewart argued the cause for the federal respondents. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Leonard Schaitman, John F. Daly, Paul M. Geier, and Daniel Carey Smith. Ronald M. Johnson argued the cause and filed a brief for respondents Atchison, Topeka and Santa Fe Railway Company et al. John H. Broadley, Donald B. Verrilli, Jr., Robert W. Blanchette, and James C. Schultz filed a brief for the Association of American Railroads as amicus curiae urging affirmance. Justice Kennedy delivered the opinion of the Court. We granted certiorari to resolve a division between two Courts of Appeals regarding the correct statutory classification, under the Hours of Service Act, 49 U. S. C. §21101 et seq., of the time that train employees spend waiting for transportation at the end of their shift. I Congress enacted the Hours of Service Act (HSA) in 1907. Hours of Service Act, ch. 2939, § 1,34 Stat. 1415. The HSA’s purpose is to promote railroad safety by limiting the number of hours a train crew may remain on duty and by requiring railroads to provide crew members with a certain number of off-duty hours for rest between shifts. Ibid.; Chicago & Alton R. Co. v. United States, 247 U. S. 197, 199 (1918). In particular, the HSA provides that train employees may not remain on duty for more than 12 consecutive hours, and, having worked for that period, must be given at least 10 consecutive hours off duty. 49 U. S. C. § 21103(a). To comply with the HSA, railroads must schedule operations and crew assignments with some precision, for if operations require the crew to be on duty for more than 12 hours, the railroads may incur substantial penalties. The Federal Railroad Administration (FRA) administers the HSA, and it is authorized to impose a fine of between $500 and $10,000 for each violation of the statute. § 21303(a)(2). For each crew member on duty longer than the statutory maximum there is a separate violation. Missouri, K., & T. R. Co. of Tex. v. United States, 231 U. S. 112, 118-119 (1913); 48 CFR pt. 228, App. A, p. 244 (1994). The statute provides certain exceptions to the rules in cases of emergency. 49 U. S. C. § 21103(c). At times, of course, a train cannot reach the scheduled crew change point, or even a convenient change point, within the 12 hours. To avoid violating the HSA, the railroad must stop the train so that a new crew can replace the first crew, now called the “outlawed crew.” Transportation of the new crew to the train and the outlawed crew back to the terminal is called “deadhead transportation.” The HSA provides different treatment for the time spent in deadhead transportation, depending on whether the transportation is taking a replacement crew to the train or taking the outlawed crew from the train. The statute provides that time spent in deadhead transportation to a duty assignment is time on duty, while time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty nor time off duty. § 21103(b)(4). Time that is neither on duty nor off duty is referred to in the industry as “limbo time.” At oral argument, the Court was advised that train employees are paid for limbo time. We thus know how to treat the time the employee spends in the deadhead vehicle. The issue is how to classify the time the outlawed crew spends waiting for the deadhead transportation to arrive. Petitioners, the Brotherhood of Locomotive Engineers and the United Transportation Union, claim the waiting time is on-duty time that counts against the 12-hour limit. Save for a short-lived period when it changed its policy to acquiesce in a decision of the Court of Appeals for the Ninth Circuit that we shall recount, the FRA for many years has taken the contrary position. In its view, so long as crew members are not required to perform duties for the railroad while they wait, time spent waiting for deadhead transportation from a duty site is to be treated in the same way as the time in the deadhead transportation itself — that is, as limbo time. 58 Fed. Reg. 18163, 18164 (1993). The railroads, who are respondents along with the Secretary of Transportation, agree with the FRA’s position. In 1990 petitioners brought suit in California and Oregon, challenging the FRA’s position. On appeal, the Court of Appeals for the Ninth Circuit held that the time spent waiting for deadhead transportation from a duty site is time on duty. The court concluded that the time was so defined before Congress amended the HSA in 1969 and that the 1969 amendments disclose no intent to change that result. United Transportation Union v. Skinner, 975 F. 2d 1421, 1426-1428 (1992). For the sake of uniformity, the FRA decided to apply the Ninth Circuit’s interpretation of the HSA on a nationwide basis. It announced the policy change in an October 28, 1992, letter to Robert W. Blanchette, Vice President of the Association of American Railroads, App. 73, and later published notice in the Federal Register, 58 Fed. Reg. 18163 (1993). In response, nine major railroads instituted the present action, seeking direct review in the United States Court of Appeals for the Seventh Circuit of the FRA’s order changing its interpretation. A three-judge panel of the Seventh Circuit affirmed the FRA’s order, see Atchison, T & S. F. R. Co. v. Peña, 29 F. 3d 324 (1994), but that opinion was superseded when the Seventh Circuit took the case en banc, 44 F. 3d 437 (1994). The en banc court rejected the Ninth Circuit’s interpretation and held that time spent waiting for deadhead transportation is limbo time. Because of the importance of uniform nationwide application of the HSA’s regulatory scheme, we granted certiorari. 515 U. S. 1141 (1995). II In determining how time spent waiting for deadhead transportation should be classified, we begin with the text and design of the statute. As first enacted, the HSA divided all time into two categories — -on duty and off duty — but it did not define either term. Congress amended the HSA in 1969, reducing the number of permissible on-duty hours and providing some specific rules for determining if a given period of time should be considered on duty or off duty. These statutory provisions are the controlling guide in the case before us, and are as follows: “(1) Time on duty begins when the employee reports for duty and ends when the employee is finally released from duty. “(2) Time the employee is engaged in or connected with the movement of a train is time on duty. “(3) Time spent performing any other service for the railroad carrier during a 24-hour period in which the employee is engaged in or connected with the movement of a train is time on duty. “(4) Time spent in deadhead transportation to a duty assignment is time on duty, but time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty nor time off duty. “(5) An interim period available for rest at a place other than a designated terminal is time on duty. “(6) An interim period available for less than 4 hours rest at a designated terminal is time on duty. “(7) An interim period available for at least 4 hours rest at a place with suitable facilities for food and lodging is not time on duty when the employee is prevented from getting to the employee’s designated terminal by any of the following: “(A) a casualty “(B) a track obstruction “(C) an act of God “(D) a derailment or major equipment failure resulting from a cause that was unknown and unforeseeable to the railroad carrier or its officer or agent in charge of that employee when that employee left the designated terminal.” 49 U. S. C. §21103(b). Although these provisions do not specify time spent waiting for deadhead transportation as a separate category, § 21103(b)(4) does classify the “time spent in deadhead transportation.” That phrase, as a matter of common usage, can be read to include the time spent waiting for the deadhead transportation, but we need not confine our examination to those words alone. When we consider the question in light of the purpose of the HSA and all the quoted provisions, we conclude that the time spent waiting for deadhead transportation is of the same character as the time spent in the deadhead transportation itself. The purpose of the HSA is to promote the safe operation of trains, and the statutory classification must be understood in accord with that objective. The statute, in effect, makes the determination that a train employee who remains on duty for more than 12 consecutive hours will be too fatigued to operate a train in a safe manner. In consequence, the provisions delineate as on-duty time those hours which will contribute to an employee’s fatigue during his or her work assignment. In some instances, the relationship between the time at issue and the employee’s fatigue is apparent, for example, the command of § 21103(b)(2) that the “[t]ime the employee is engaged in or connected with the movement of a train is time on duty.” The classification of other time periods is not quite as straightforward, but we think still apparent from the statutory design. What if a train employee is permitted to take a lengthy break between periods of work? If the train employee is not working at all during this time, is it time off duty? The statute answers the question by reference to the likelihood of employee fatigue in the ensuing period of work without the mandated rest interval. The statute specifies that an “interim period available for less than 4 hours rest at a designated terminal,” § 21103(b)(6), and an “interim period available for rest at a place other than a designated terminal,” § 21103(b)(5), are to be considered on-duty hours. It follows from the statutory scheme that these rest periods are not sufficient to alleviate fatigue. The treatment of deadhead transportation follows the same scheme. Section 21103(b)(4) provides that “[t]ime spent in deadhead transportation to a duty assignment is time on duty, but time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty nor time off duty.” The distinction between transportation to a duty assignment and transportation from a duty assignment makes perfect sense, given the statute’s purpose of promoting train safety. Time spent deadheading to a duty site contributes to the fatigue that a train employee is likely to have during the 12-hour shift. By defining the time spent deadheading to a duty assignment as on-duty time, Congress ensured that an employee will not operate a train more than 12 hours after reporting for duty. The time employees spend deadheading from the duty site does not give rise to these safety concerns, for no matter how much time the employees must spend deadheading away from the duty site, they will still receive the requisite off-duty rest time once they reach the terminal and before beginning a new shift involving train operations. The same reasoning applies to the time spent waiting for deadhead transportation. Time spent waiting for deadhead transportation to a duty site should be classified as on-duty time because, along with the time spent in the transportation itself, it contributes to employee fatigue during the work assignment. Time spent waiting for deadhead transportation away from a duty site does not cause the fatigue that implicates these safety concerns and so, like the deadhead transportation which the wait precedes, the waiting time must be deemed limbo time to effect the statutory design. It is common ground, moreover, that at the beginning of a shift, the wait for transportation and the transportation itself are treated alike; that is, the time spent waiting for deadhead transportation after reporting for duty at the required hour and the time spent in the deadhead transportation itself are both on-duty time. A consistent interpretation of the statute requires that the parallelism between the wait and the transportation when the shift begins carry over to the wait and the transportation when it ends. Finally, the concerns that surfaced during the 1969 amendment process lend additional support to our conclusion. As noted, before the 1969 amendments time under the HSA fell into one of two categories — on duty or off duty. The binary scheme created a problem, however. The hours spent deadheading from the duty site to the terminal counted as off-duty rest time, see United States v. Great Northern R. Co., 285 F. 152, 153 (CA9 1922), and, as a consequence, employees often spent much of their off-duty time not resting, but deadheading to the terminal. S. Rep. No. 91-604, p. 7 (1969); H. R. Rep. No. 91-469, p. 7 (1969). The railroad unions responded to the problem during the amendment process by advocating that all time spent deadheading be classified as time on duty, and the original bill proposed in the House so provided. Ibid. The railroad industry opposed the change, however, particularly with respect to time spent deadheading from the duty site because of the operating difficulties that would result. Hearings on H. R. 8449, H. R. 84, and H. R. 9515 before the House Committee on Interstate and Foreign Commerce, 91st Cong., 1st Sess., 134-135 (1969). If time spent deadheading from a duty site were to be on-duty time, railroads would have to calculate the approximate deadheading time and stop the train early enough to take account of that interval. Any miscalculation would lead to a violation of the HSA. The enacted statute reflects a compromise in the treatment of deadhead transportation: on-duty time at the shift’s beginning, limbo time at its end. The creation of limbo time solved the problem of the employee who was forced to spend much of his or her off-duty rest time in deadhead transportation, but it did so without imposing scheduling difficulties on the railroads. If we were now to classify the waiting time as on-duty, as petitioners request, we would impose on railroads the same scheduling problems that Congress sought to avoid. Petitioners try to escape the force of the argument by attempting to fit the time at issue here within other HSA provisions. For instance, because an “interim period available for rest at a place other than a designated terminal is time on duty,” 49 U. S. C. § 21103(b)(5), petitioners reason that all waiting time at a place other than a designated terminal must be time on duty. But, as we have said, interim periods available for rest occur, by definition, between periods of service for the railroad. Because the employee must return to work immediately after an interim rest period, Congress had to determine whether such a rest period would be sufficient to alleviate fatigue. Its conclusions on that score have no bearing when the time spent waiting for deadhead transportation is followed not by renewed service but by the statutory off-duty rest time. Petitioners next argue that because the HSA provides that “[t]ime on duty begins when the employee reports for duty and ends when the employee is finally released from duty,” §21103(b)(1), time on duty must always continue until the employee reaches his designated terminal. But that cannot be, for the HSA is express in providing that deadhead transportation from a duty site is limbo time, § 21103(b)(4). Petitioners also point to § 21103(b)(3), which classifies as on duty any “[t]ime spent performing any other service for the railroad carrier during the 24-hour period in which the employee is engaged in.or connected with the movement of a train.” They say that because employees may be required to perform services for the railroad while they wait for the deadhead transportation to arrive, waiting time must be considered time on duty pursuant to § 21103(b)(3). Petitioners’ argument begs the question, however. If employees are required to perform services covered by § 21103(b)(3), the time is on-duty time by definition. The question presented here, however, is how to treat the time spent waiting for deadhead transportation when no additional services are required, and § 21103(b)(3) cannot answer that question. Petitioners, like the Ninth Circuit in United Transportation Union v. Skinner, 975 F. 2d, at 1426, point to numerous cases, most of them decided during the early part of this century, that they believe support their interpretation of the statute. See Missouri, K, & T R. Co. of Tex. v. United States, 231 U. S. 112 (1913); Northern Pacific R. Co. v. United States, 220 F. 108 (CA9 1915); United States v. Southern Pacific Co., 245 F. 722 (CA9 1917); United States v. Pennsylvania R. Co., 275 F. Supp. 345 (WD Pa. 1967); United States v. Chicago, M. & P. S. R. Co., 195 F. 783 (WD Wash. 1912). We need not determine whether the Ninth Circuit’s reading of these cases was the correct one, cf. Atchison, T. & S. F. R. Co. v. Peña, 44 F. 3d 437, 444 (CA7 1994) (opinion below) (distinguishing the above cases because they addressed “the categorization of time spent by a railroad crew waiting for repairs to be made or for some other delay before resuming its duties of operating the train”), because they were all decided before Congress amended the HSA. Thus, even if the time at issue here had been treated as on-duty time before 1969, that conclusion would have no bearing on how the time should now be defined because the 1969 amendments addressed this question. For these reasons, we reject petitioners’ construction of the HSA. The text, structure, and purposes of the statute persuade us that Congress intended that time spent waiting for deadhead transportation from a duty site should be limbo time. The judgment of the Court of Appeals is affirmed. It is so ordered.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 52 ]	sc_adminaction
IMMIGRATION AND NATURALIZATION SERVICE v. ERRICO. No. 54. Argued October 20, 1966. Decided December 12, 1966. Solicitor General Marshall argued the cause for petitioner in No. 54 and for respondent in No. 91. With him on the briefs were Assistant Attorney General Vinson, Louis F. Claiborne, L. Paul Winings and Charles Gordon. Frank Ierulli argued the cause for respondent in No. 54. With him on the brief was Edwin J. Peterson. Julius C. Biervliet argued the cause for petitioner in No. 91. With him on the brief was Edward Q. Carr, Jr. Together with No. 91, Scott, aka Plummer v. Immigration and Naturalization Service, on certiorari to the United States Court of Appeals for the Second Circuit. Mr. Chief Justice Warren delivered the opinion of the Court. We granted certiorari in these cases to resolve a conflict between the Second and Ninth Circuits on their interpretations of § 241 (f) of the Immigration and Nationality Act. The issue is identical in both cases and, therefore, lends itself to a single opinion. Section 241 (f) reads as follows: “The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.” The issue is whether the statute saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or lawful permanent resident. Respondent Errico in No. 54, a native of Italy, falsely represented to the immigration authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that misrepresentation he was granted first preference quota status under the statutory preference scheme then in effect, and entered the United States in 1959 with his wife. A child was born to the couple in 1960 and acquired United States citizenship at birth. In 1963 deportation proceedings were commenced against Errico on the ground that he was excludable at the time of entry as not “of the proper status under the quota specified in the immigrant visa.” Throughout the proceedings Errico insisted that he was saved from deportation by § 241 (f). The special inquiry officer of the Immigration and Naturalization Service ruled that relief under § 241 (f) was not available because Errico had not complied with quota requirements and, hence, was not “otherwise admissible at the time of entry.” The Board of Immigration Appeals affirmed the deportation order but the Court of Appeals for the Ninth Circuit reversed, holding that the construction of the statute adopted by the Board would strip it of practically all meaning, since a material misrepresentation would presumably be given to conceal some factor that would bear on admissibility. 349 F. 2d 541. We granted certiorari. 383 U. S. 941. Petitioner Scott in No. 91, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for entry into the country. She has never lived with her husband and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who became an American citizen at birth. When the fraud was discovered, deportation proceedings were begun, and a special inquiry officer of the Immigration and Naturalization Service found her deportable on the ground that she was not a nonquota immigrant as specified in her visa. The Board of Immigration Appeals affirmed, and the Court of Appeals for the Second Circuit affirmed the Board. 350 F. 2d 279. The court agreed with the Board of Immigration Appeals that a sham marriage contracted solely to circumvent the immigration laws would not confer nonquota status on an alien as the spouse of an American citizen. It also affirmed the ruling that Mrs. Scott was not entitled to relief under § 241 (f) because she was not otherwise admissible at the time of entry, since her country’s quota was oversubscribed. We granted certiorari. 383 U. S. 941. At the outset it should be noted that even the Government agrees that § 241 (f) cannot be applied with strict literalness. Literally, § 241 (f) applies only when the alien is charged with entering in violation of § 212 (a)(19) of the statute, which excludes from entry “[a]ny alien who . . . has procured a visa or other documentation ... by fraud, or by willfully misrepresenting a material fact.” Under this interpretation, an alien who entered by fraud could be deported for having entered with a defective visa or for other documentary irregularities even if he would have been admissible if he had not committed the fraud. The Government concedes that such an interpretation would be inconsistent with the manifest purpose of the section, and the administrative authorities have consistently held that § 241 (f) waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under which the charge was brought, provided that the alien was “otherwise admissible at the time of entry.” The Government’s argument in both cases is that to be otherwise admissible at the time of entry the alien must show that he would have been admitted even if he had not lied, and that the aliens in these cases would not have been admitted because of the quota restrictions. It is the argument of the aliens that our adoption of the government thesis would negate the intention of Congress to apply fair humanitarian standards in granting relief from the consequences of their fraud to aliens who are close relatives of United States citizens, and that the statute would have practically no effect if construed as the Government argues, since it requires a considerable stretch of the imagination to conceive of an alien making a material misrepresentation that did not conceal some factor that would make him inadmissible. The sharp divergence of opinion among the circuit judges in these cases indicates that the meaning of the words “otherwise admissible” is not obvious. An interpretation of these words requires close attention to the language of § 241 (f), to the language of its predecessor, § 7 of the 1957 Act, and to the legislative history of these provisions. The legislative history begins with the enactment of the Displaced Persons Act of 1948, 62 Stat. 1009. This Act provided for the admission to the United States of thousands of war refugees, many from countries that had fallen behind the Iron Curtain. Some of these refugees misrepresented their nationality or homeland while in Europe to avoid being repatriated to a Communist country. In so doing, however, they fell afoul of § 10 of the Act, which provided that persons making willful misrepresentations for the purpose of gaining admission “shall thereafter not be admissible into the United States.” The plight of these refugees, who were excluded from the United States for misrepresentations that were generally felt to be justifiable, inspired recurring proposals for statutory reform. When the Act was revised and codified in 1952, the House Committee recommended adding a provision to save such refugees from deportation when they had misrepresented their nationality or homeland only to avoid repatriation and persecution. The Conference Committee deleted the provision, but announced its sympathy with the refugees in the following terms: “It is also the opinion of the conferees that the sections of the bill which provide for the exclusion of aliens who obtained travel documents by fraud or by willfully misrepresenting a material fact, should not serve to exclude or to deport certain bona fide refugees who in fear of being forcibly repatriated to their former homelands misrepresented their place of birth when applying for a visa and such misrepresentation did not have as its basis the desire to evade the quota provisions of the law or an investigation in the place of their former residence. The conferees wish to emphasize that in applying fair humanitarian standards in the administrative adjudication of such, cases, every effort is to be made to prevent the evasion of law by fraud and to protect the interest of the United States.” H. R. Rep. No. 2096, 82d Cong., 2d Sess., p. 128 (1952). The Immigration and Naturalization Service and the Attorney General did not construe the statute as the Conference Committee had recommended, believing that the explicit statutory language did not allow for an exemption for justifiable misrepresentations. Refugees who misrepresented their place of origin were always found to have concealed a material fact, since the misrepresentation hindered an investigation of their background. The misrepresentation section was not the only provision of the 1952 legislation that was widely thought to be unnecessarily harsh and restrictive, and in 1957 Congress passed legislation alleviating in many respects the stricter provisions of the earlier legislation. The purpose of the 1957 Act is perfectly clear from its terms, as well as from the relevant House and Senate Committee Reports. The most important provisions of the Act provide for special nonquota status for the adopted children or illegitimate children of immigrant parents, and for orphans who have been or are to be adopted by United States citizens. Other important provisions allow the Attorney General to waive certain grounds for exclusion or deportation, including affliction with tuberculosis or conviction of a crime involving moral turpitude, on behalf of aliens who are near relatives of United States citizens or of aliens lawfully admitted for permanent residence. The intent of the Act is plainly to grant exceptions to the rigorous provisions of the 1952 Act for the purpose of keeping family units together. Congress felt that, in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable or harmful aliens out of the country. In this context it is not surprising that Congress also granted relief to aliens facing exclusion or deportation because they had gained entry through misrepresentation. Section 7 of the 1957 Act provided that: “The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who (A) is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence; or (B) was admitted to the United States between December 22, 1945, and November 1, 1954, both dates inclusive, and misrepresented his nationality, place of birth, identity, or residence in applying for a visa: Provided, That such alien described in clause (B) shall establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien’s fear of persecution because of race, religion, or political opinion if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere. After the effective date of this Act, any alien who is the spouse, parent, or child of a United States citizen or of an alien lawfully admitted for permanent residence and who is excludable because (1) he seeks, has sought to procure, or has procured, a visa or other documentation, or entry into the United States, by fraud or misrepresentation, or (2) he admits the commission of perjury in connection therewith, shall hereafter be granted a visa and admitted to the United States for permanent residence, if otherwise admissible, if the Attorney General in his discretion has consented to the alien’s applying or reapplying for a visa and for admission to the United States.” This section waived deportation under certain circumstances for two classes of aliens who had entered by fraud or misrepresentation. First, an alien who was “the spouse, parent, or a child of a United States citizen . . .” was saved from deportation for his fraud if he was “otherwise admissible at the time of entry.” Second, an alien who entered during the postwar period and misrepresented his nationality, place of birth, identity, or residence was saved from deportation if he was “otherwise admissible at the time of entry” and if he could “establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien’s fear of persecution because of race, religion, or political opinion if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere.” This language would be meaningless if an alien who committed fraud for the purpose of evading quota restrictions would be deportable as not “otherwise admissible at the time of entry.” Congress must have felt that aliens who evaded quota restrictions by fraud would be “otherwise admissible at the time of entry” or it would not have found it necessary to provide further that, in the case of an alien not possessing a close familial relationship to a United States citizen or lawful permanent. resident, the fraud must not be for the purpose of evading quota restrictions. This conclusion is reinforced by the fact that Congress further specified that the aliens who were not close relatives of United States citizens must establish that their fraud was not committed for the purpose of evading an investigation. Fraud for the purpose of evading an investigation, if forgiven by the statute, would clearly leave the alien “otherwise admissible” if there were no other disqualifying factor. Elementary principles of statutory construction lead to the conclusion that Congress meant to specify two specific types of fraud that would leave an alien “otherwise admissible” but that would nonetheless bar relief to those aliens who could not claim close relationship with a United States citizen or alien lawfully admitted for permanent residence. The present § 241 (f) is essentially a re-enactment of § 7 of the 1957 Act. The legislative history leaves no doubt that no substantive change in the section was intended. The provision dealing with aliens who had entered the United States between 1945 and 1954, and had misrepresented their nationality for fear of persecution or repatriation, was omitted because it had accomplished its purpose; the rest of the section was retained intact. It could hardly be argued that Congress intended to change the construction of the statute by this codification. The intent of § 7 of the 1957 Act not to require that aliens who are close relatives of United States citizens have complied with quota restrictions to escape deportation for their fraud is clear from its language, and there is nothing in the legislative history to suggest that Congress had in mind a contrary result. The only specific reference to the part of § 7 that deals with close relatives of United States citizens or residents is in the House Committee Report, and it says only that most of the persons eligible for relief would be “Mexican nationals, who, during the time when border-control operations suffered from regrettable laxity, were able to enter the United States, establish a family in this country, and were subsequently found to reside in the United States illegally.” H. R. Rep. No. 1199, 85th Cong., 1st Sess., p. 11. Without doubt most of the aliens who had obtained entry into the United States by illegal means were Mexicans, because it has always been far easier to avoid border restrictions when entering from Mexico than when entering from countries that do not have a common land border with the United States. There is nothing in the Committee Report to indicate that relief under the section was intended to be restricted to Mexicans, however. Neither does it follow that, because Mexicans are not subject to quota restrictions, therefore nationals of countries that do have a quota must be within the quota to obtain relief. The construction of the statute that we adopt in these cases is further reinforced when the section is regarded in the context of the 1957 Act. The fundamental purpose of this legislation was to unite families. Refugees from Communist lands were also benefited, but the Act principally granted relief to persons who would be temporarily or permanently separated from their nearest relatives if the strict requirements of the Immigration and Nationality Act, including the national quotas, were not relaxed for them. It was wholly consistent with this purpose for Congress to provide that immigrants who gained admission by misrepresentation, perhaps many years ago, should not be deported because their countries’ quotas were oversubscribed when they entered if the effect of deportation would be to separate families composed in part of American citizens or lawful permanent residents. Even if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien. As this Court has held, even where a punitive section is being construed: “We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U. S. 388. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Fong Haw Tan v. Phelan, 333 U. S. 6, 10. See also Barber v. Gonzales, 347 U. S. 637, 642-643. The 1957 Act was not a punitive statute, and § 7 of that Act, now codified as § 241 (f), in particular was designed to accomplish a humanitarian result. We conclude that to give meaning to the statute in the light of its humanitarian purpose of preventing the breaking up of families composed in part at least of American citizens, the conflict between the circuits must be resolved in favor of the aliens, and that the Errico decision must be affirmed and the Scott decision reversed. It is so ordered. 75 Stat. 655 (1961), 8 U. S. C. §1251 (f). Section 211 (a) (4) of the Immigration and Nationality Act, 66 Stat. 181 (1952), later amended, 79 Stat. 917 (1965), 8 ü. S. C. §1181 (a) (1964 ed., Supp. I). Aliens who were excludable at the time of entry under the law then existing are deportable under § 241 (a)(1), 66 Stat. 204 (1952), as amended, 8 Ü. S. C. § 1251 (a)(1). Section 211 (a)(3), 66 Stat. 1,81 (1952), later amended, 79 Stat. 917 (1965), 8 U. S. C. § 1181 (a) (1964 ed., Supp. I). 66 Stat. 183 (1952), as amended, 8 U. S. C. §1182 (a)(19). See Matter of S— , 7 I. & N. Dec. 715 (1958); Matter of Y—, 8 I. & N. Dec. 143 (1959). Pub. L. 85-316, 71 Stat. 639 (1957). See H. R. Rep. No. 1365, 82d Cong., 2d Sess., p. 128 (1952). See Matter of B— and P— , 2 I. & N. Dec. 638 (1947); H. R. Rep. No. 1199, 85th Cong., 1st Sess., p. 10 (1957). “The legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united.” H. R. Rep. No. 1199, 85th Cong., 1st Sess., p. 7 (1957). See also S. Rep. No. 1057, 85th Cong., 1st Sess. (1957). It is in this context that the legislative history cited in the dissent should be understood. The remarks of Senator Eastland and Congressman Celler quoted in footnote 4 of the dissent in context do not refer to § 7 of the Act but to the provisions of the bill providing for the adoption of alien orphans. Furthermore, Senator Eastland and Congressman Celler did not mean that no exceptions to the quota requirements were intended to be created, because the basic purpose of the bill was to relax the quota system for adopted children and for certain other classes of aliens deemed deserving of relief. They were reassuring their colleagues that no fundamental changes in the quota system were contemplated. H. R. Rep. No. 1086, 87th Cong., 1st Sess., p. 37 (1961). See also 107 Cong. Rec. 19653-19654 (1961) (remarks of Senator Eastland). H. R. Rep. No. 1086, 87th Cong., 1st Sess., p. 37 (1961).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 6 ]	sc_adminaction
FORD MOTOR CREDIT CO. et al. v. MILHOLLIN et al. No. 78-1487. Argued December 4, 1979 Decided February 20, 1980 BrenNan, J., delivered the opinion for a unanimous Court. BlackmtjN, J., filed a concurring opinion, in which BurgeR, C. J., joined, post, p. 570. William, M. Burke argued the cause for petitioners. With him on the briefs were George R. Richter, Jr., Ronald M. Bayer, Herbert H. Anderson, and John M. Berman. Richard A. Slottee argued the cause for respondents. With him on the brief were William H. Clendenen, Jr., and Richard Kanter. Stuart A. Smith argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Assistant Attorney General Shene-field, John J. Powers III, and Marion L. Jetton. Although respondents spell their name “Millhollin,” throughout this litigation their name has been misspelled as “Milhollin.” Because legal research catalogs and computers are governed by the principle of consistency, not correctness, we feel constrained to adhere to the erroneous spelling. Briefs of amici curiae urging reversal were filed by Roland E. Brandel for the California Bankers Association; by Peter D. Schellie and Theodore R. Boehm for the Consumer Bankers Association; and by William H. Allen and Vernon L. Evans for the National Consumer Finance Association et al. Margaret S. Bigg and Willard P. Ogburn filed a brief for the National Clients Council, Inc., as amicus curiae urging affirmance. Mr. Justice Brennan delivered the opinion of the Court. The issue for decision in this case is whether the Truth in Lending Act (TILA), 82 Stat. 146, as amended, 16 U. S. C. § 1601 et seq., requires that the existence of an acceleration clause always be disclosed on the face of a credit agreement. The Federal Reserve Board staff has consistently construed the statute and regulations as imposing no such uniform requirement. Because we believe that a high degree of deference to this administrative interpretation is warranted, we hold that TILA does not mandate a general rule of disclosure for acceleration clauses. I The several respondents in this case purchased automobiles from various dealers, financing their purchases through standard retail installment contracts that were assigned to petitioner Ford Motor Credit Co. (FMCC), a finance company. Each contract provided that respondents were to pay a precomputed finance charge. As required by TILA and Federal Reserve Board Regulation Z, which implements the Act, the front page of each contract disclosed and explained certain features of the agreement. See 15 U. S. C. § 1631; 12 CFR § 226.6 (a) (1979). Among these disclosures was a paragraph informing the buyer that he “may prepay his obligations under this contract in full at any time prior to maturity of the final instalment hereunder, and, if he does so, shall receive a rebate of the unearned portion of the Finance Charge computed under the sum of the digits method....” The face of the contract also stated that temporary default on a particular installment would result in a predetermined delinquency charge. Not mentioned on the disclosure page was a clause in the body of the contract giving the creditor a right to accelerate payment of the entire debt upon the buyer’s default. Respondents subsequently commenced four separate suits against FMCC in the United States District Court for the District of Oregon, alleging, inter alia,, that FMCC had violated TILA and Regulation Z by failing to disclose on the front page of the contract that the creditor retained the right to accelerate payment of the debt. In two of the suits, the District Court held that facial disclosure of the acceleration clauses was mandated by the provision of TILA that compels publication of "default, delinquency, or similar charges payable in the event of late payments,” 15 U. S. C. §§ 1638- (a) (9), 1639 (a)(7). App. 30-31, 37, 69-71. Respondents in the other two actions prevailed on different grounds. All four cases were consolidated on appeal to the Ninth Circuit. The Court of Appeals agreed with the District Court that TILA imposes a general acceleration-clause disclosure requirement. Rather than resting on the District Court’s holding that acceleration is a default charge, however, the Court of Appeals based its decision on the narrower principle that under Regulation Z “[t]he creditor must disclose whether a rebate of unearned interest will be made upon acceleration and also disclose the method by which the amount of unearned interest will be computed if the debt is accelerated.” 588 F. 2d 753, 757 (1978), quoting St. Germain v. Bank of Hawaii, 573 F. 2d 572, 577 (CA9 1977). See 12 CFR § 226.8 (b)(7) (1979). Implicit in the conclusion of the Court of Appeals — -and explicit in its preceding St. Germain decision— was the rejection of a contrary administrative interpretation of the pertinent statutory and regulatory provisions. In adopting its particular approach, the Court of Appeals mapped a path through the disclosure thicket that diverges from the routes traveled by the Courts of Appeals for several other Circuits. We granted certiorari, 442 U. S. 940 (1979), to resolve the conflict. We reverse. II The Truth in Lending Act has the broad purpose of promoting “the informed use of credit” by assuring “meaningful disclosure of credit terms” to consumers. 15 U. S. C. § 1601. Because of their complexity and variety, however, credit transactions defy exhaustive regulation by a single statute. Congress therefore delegated expansive authority to the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit. 15 U. S. C. § 1604; Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973). The Board executed its responsibility by promulgating Regulation Z, 12 CFR Part 226 (1979), which at least partly fills the statutory gaps. Even Regulation Z, however, cannot speak explicitly to every credit disclosure issue. At the threshold, therefore, interpretation of TILA and Regulation Z demands an examination of their express language; absent a clear expression, it becomes necessary to consider the implicit character of the statutory scheme. For the reasons following we conclude that the issue of acceleration disclosure is not governed by clear expression in the statute or regulation, and that it is appropriate to defer to the Federal Reserve Board and staff in determining what resolution of that issue is implied by the truth-in-lending enactments. Respondents have advanced two theories to buttress their claim that the Act and regulation expressly mandate disclosure of acceleration clauses. In the District Court, they contended that acceleration clauses were comprehended by the general statutory prescription that a creditor shall disclose “default, delinquency, or similar charges payable in the event of late payments,” 15 U. S. C. §§ 1638 (a)(9), 1639 (a)(7), and were included within the provision of Regulation Z requiring disclosure of the “amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments,” 12 CFR § 226.8 (b)(4) (1979). Before this Court, respondents follow the Court of Appeals in arguing that 12 CFR § 226.8 (b)(7) may be the source of an obligation to disclose procedures governing the rebate of unearned finance charges that accrue under acceleration. That section commands “[identification of the method of computing any unearned portion of the finance charge in the event of prepayment in full of an obligation which includes precomputed finance charges and a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to an obligation or refunded to the customer” A fair reading of the pertinent provisions does not sustain respondents’ contention that acceleration clauses are within their terms. An acceleration clause cannot be equated with a “default, delinquency, or similar charg[e],” subject to disclosure under 15 U. S. C. §§ 1638 (a)(9), 1639 (a)(7), and 12 CFE § 226.8 (b)(4). The prerogative of acceleration affords the creditor a mechanism for collecting the outstanding portion of a debt on which there has been a partial default. In itself, acceleration entails no monetary penalty, although a creditor may independently impose such a penalty, for example, by failing to rebate unearned finance charges. A “default, delinquency, or similar charg[e],” on the other hand, self-evidently refers to a specific assessable sum. Thus, within the trade, delinquency charges are understood to be “the compensation a creditor receives on a precomputed contract for the debtor’s delay in making timely instalment payments,” 1 CCH Consumer Credit Guide ¶¶4230, 4231 (1977) (emphasis added). Acceleration is not compensatory; a creditor accelerates to avoid further delay by demanding immediate payment of the outstanding debt. See id., ¶ 4231; Uniform Consumer Credit Code of 1968, § 2.203, official comment 2, 7 U. L. A. 315-316 (1978); §2.204 (3), id., at 317. The language employed in TILA §§ 1638 (a)(9) and 1639 (a)(7), and in 12 CFR §226.8 (b)(4) (1979), confirms the interpretation of “charges” as specific penalty sums. The statutory provisions speak of “charges payable in the event of late payments.” (Emphasis added.) Even if one considers the burdensomeness of acceleration as a form of “charge” upon the debtor, it would hardly make sense to speak of that burden as “payable” to the creditor. Similarly Regulation Z orders disclosure of the “amount, or method of computing the ■amount, of any default, delinquency, or similar charges...” (Emphasis added.) That command has no sensible application to the remedy of acceleration. In short, we would have to stretch these provisions beyond their obvious limits to construe them as a mandate for the disclosure of acceleration clauses. The prepayment rebate disclosure regulation, 12 CFR § 226.8 (b)(7) (1979), also fails to afford direct support for an invariable specific acceleration disclosure rule. To be sure, payment by the debtor in response to acceleration might be deemed a prepayment within the ambit of that regulation. But so long as the creditor’s rebate practice under acceleration is identical to its policy with respect to voluntary prepayments, separate disclosure of the acceleration policy does not seem obligatory under a literal reading of the regulation. Section 226.8 (b)(7), therefore, squares with the position of the Federal Reserve Board staff that specific disclosure of acceleration rebate policy is only necessary when that policy varies from the custom with respect to voluntary prepayment rebates. FRB Official Staff Interpretation No. FC-0054, 12 CFR Part 226 Appendix, p. 627 (1979). Ill Notwithstanding the absence of an express statutory mandate that acceleration procedures be invariably disclosed, the Court of Appeals has held that the “creditor must [always] disclose whether a rebate of unearned interest will be made upon acceleration and also disclose the method by which the amount of unearned interest will be computed if the debt is accelerated.” St. Germain v. Bank of Hawaii, 573 F. 2d, at 577; accord, 588 F. 2d, at 757-758. In so deciding, the Court of Appeals in St. Germain explicitly rejected the view of the Federal Reserve Board staff that the right of acceleration need not be disclosed, and that rebate practice under acceleration must be disclosed only if it differs from the creditor’s rebate policy with respect to voluntary prepayment. FRB Official Staff Interpretation No. FC-0054, supra; see FRB Public Information Letter No. 851, [1974-1977 Transfer Binder] CCH Consumer Credit Guide ¶ 31,173; FRB Public Information Letter No. 1208, id., ¶ 31,647; FRB Public Information Letter No. 1324, 5 CCH Consumer Credit Guide ¶[ 31,827 (1979). Rather, St. Germain declared that it would “choose the direction that makes more sense to us in trying to achieve the congressional purpose of providing meaningful disclosure to the debtor about the costs of his borrowing.” 573 F. 2d, at 576-577. It is a commonplace that courts will further legislative goals by filling the interstitial silences within a statute or a regulation. Because legislators cannot foresee all eventualities, judges must decide.unanticipated cases by extrapolating from related statutes or administrative provisions. But legislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. In that event, judges are not accredited to supersede Congress or the appropriate agency by embellishing upon the regulatory scheme. Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence. At the very least, that caution requires attentiveness to the views of the administrative entity appointed to apply and enforce a statute. And deference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive for several reasons. The Court has often repeated the general proposition that considerable respect is due “ 'the interpretation given [a] statute by the officers or agency charged with its administration.’ ” Zenith Radio Corp. v. United States, 437 U. S. 443, 450 (1978), quoting Udall v. Tollman, 380 U. S. 1, 16 (1965); see, e. g., Power Reactor Co. v. Electricians, 367 U. S. 396, 408 (1961). An agency’s construction of its own regulations has been regarded as especially due that respect. See Bowles v. Seminole Rock Co., 325 U. S. 410, 413-414 (1945). This traditional acquiescence in administrative expertise is particularly apt under TILA, because the Federal Reserve Board has played a pivotal role in “setting [the statutory] machinery in motion....” Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933). As we emphasized in Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), Congress delegated broad administrative lawmaking power to the Federal Reserve Board when it framed TILA. The Act is best construed by those who gave it substance in promulgating regulations thereunder. Furthermore, Congress has specifically designated the Federal Reserve Board and staff as the primary source for interpretation and application of truth-in-lending law. Because creditors need sure guidance through the “highly technical” Truth in Lending Act, S. Rep. No. 93-278, p. 13 (1973), legislators have twice acted to promote reliance upon Federal Reserve pronouncements. In 1974, TILA was amended to provide creditors with a defense from liability based upon good-faith compliance with a “rule, regulation, or interpretation” of the Federal Reserve Board itself. § 406, 88 Stat. 1518, codified at 15 U. S. C. § 1640 (f). The explicit purpose of the amendment was to relieve the creditor of the burden of choosing “between the Board’s construction of the Act and the creditor’s own assessment of how a court may interpret the Act.” S. Rep. No. 93-278, supra, at 13. The same rationale prompted a further change in the statute in 1976, authorizing a liability defense for “conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals....” § 3 (b), 90 Stat. 197, codified at 15 U. S C. § 1640 (f); see 122 Cong. Rec. 2836 (1976) (remarks of Sen. Garn); id., at 2852 (remarks of Rep. Annunzio, chairman of Consumer Affairs Subcommittee) ; ibid, (remarks of Rep. Rousselot); 121 Cong. Rec. 36927 (1975) (remarks of Rep. Annunzio); id., at 36927-36928 (remarks of Rep. Wylie). The enactment and expansion of § 1640 (f) has significance beyond the express creation of a good-faith immunity. That statutory provision signals an unmistakable congressional decision to treat administrative rulemaking and interpretation under TILA as authoritative. Moreover, language in the legislative history evinces a decided preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal through litigation. See S. Rep. No. 93-278, supra, at 13-14; 122 Cong. Rec. 2852 (1976) (remarks of Rep. Annunzio); 121 Cong. Rec. 36927 (1975) (remarks of Rep. Annunzio). Courts should honor that congressional choice. Thus, while not abdicating their ultimate judicial responsibility to determine the law, cf. generally SEC v. Chenery Corp., 318 U. S. 80, 92-94 (1943), judges ought to refrain from substituting their own interstitial lawmaking for that of the Federal Reserve, so long as the latter’s lawmaking is not irrational. Finally, wholly apart from jurisprudential considerations or congressional intent, deference to the Federal Reserve is compelled by necessity; a court that tries to chart a true course to the Act’s purpose embarks upon a voyage without a compass when it disregards the'agency’s views. The concept of “meaningful disclosure” that animates TILA, see St. Germain, 573 F. 2d, at 577, cannot be applied in the abstract. Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between “competing considerations of complete disclosure... and the need to avoid... [informational overload].” S. Rep 96-73, p. 3 (1979) (accompanying S. 108, Truth in Lending Simplification and Reform Act); see S. Rep. No. 95-720, pp. 2-3 (1978); 63 Federal Reserve Board Ann. Rep. 326, 349-350 (1976); Comment, Acceleration Clause Disclosure Under the Truth in Lending Act, 77 Colum. L. Rev. 649, 662-663 (1977). And striking the appropriate balance is an empirical process that entails investigation into consumer psychology and that presupposes broad experience with credit practices. Administrative agencies are simply better suited than courts to engage in such a process. The Federal Reserve Board staff treatment of acceleration disclosure rationally accommodates the conflicting demands for completeness and for simplicity. In determining that acceleration rebate practices need be disclosed only when they diverge from other prepayment rebate practices, the Federal Reserve has adopted what may be termed a “bottom-line” approach: that the most important information in a credit purchase is that which explains differing net charges and rates. Cf. S. Rep. No. 96-73, supra, at 3-4; 63 Federal Reserve Board Ann. Rep., supra, at 350-352. Although the staff might have decided that acceleration rebates are so analytically distinct from identical voluntary prepayment rebates as to warrant separate disclosure, it was reasonable to conclude, alternatively, that ordinary.consumers would be concerned chiefly about differing financial consequences. Paced with an apparent lacuna in the express prescriptions of TILA and Regulation Z, the Court of Appeals had no ground for displacing the Federal Reserve staff's expert judgment. Accordingly, we decide that the Court of Appeals erred in rejecting the views of the Federal Reserve Board and staff, and holding that separate disclosure of acceleration rebate practices is always required. Reversed and remanded. “In the event Buyer defaults in any payment... Seller shall have the right to declare all amounts due or to become due hereunder to be immediately due and payable....” The individual suits were Milhollin v. Ford Motor Credit Co., Civ. No. 75-334 (1976); Eaton v. Ford Motor Credit Co., Civ. No. 76-575 (1977); Andresen v. Ford Motor Credit Co., Civ. No. 76-1090 (1977); and Messinger v. Ford Motor Credit Co., Civ. No. 76-475 (1977). Milhollin and Eaton, supra n. 2. Andresen and Messinger, supra n. 2. The Court of Appeals rejected the grounds for TILA liability relied upon by the District Court in Andresen and Messinger, and remanded those two cases for consideration under the acceleration-clause theory. The Courts of Appeals for the Eighth and Tenth Circuits have flatly-declared that a creditor's rebate practice upon acceleration never need be disclosed. Griffith v. Superior Ford, 577 F. 2d 455 (CA8 1978); United States ex rel. Hornell v. One 1976 Chevrolet, 585 F. 2d 978 (CA10 1978). The Courts of Appeals for the Third and District of Columbia Circuits have held that acceleration rebate policies need not be separately disclosed when state law or the contract compels the creditor to rebate under acceleration, as under voluntary prepayment. Johnson v. McCrackin-Sturman Ford, Inc., 527 F. 2d 257 (CA3 1975); Price v. Franklin Investment Co., 187 U. S. App. D. C. 383, 574 F. 2d 594 (1978). The Court of Appeals for the Fifth Circuit has also adopted the position that separate disclosure is not required when the creditor is obliged to treat acceleration and voluntary prepayment alike for rebate purposes; that court has emphasized that the critical factor is the creditor’s legal obligation to rebate, rather than its unbidden rebate policy. McDaniel v. Fulton Nat. Bank, 571 F. 2d 948 (en banc), clarified, 576 F. 2d 1156 (1978) (en banc). Seven of the Courts of Appeals, including that for the Ninth Circuit, have refused to treat acceleration simpliciter as a “charge” within 15 U. S. C. § 1638 (a) (9) and 12 CFR § 226.8 (b) (4) (1979). Johnson v. McCrackin-Sturman Ford, Inc., 527 F. 2d, at 265-268 (CA3); McDaniel v. Fulton Nat. Bank, 576 F. 2d, at 1157 (CA5) (en banc); Croysdale v. Franklin Sav. Assn., 601 F. 2d 1340, 1342-1343, and n. 2 (CA7 1979) ; Griffith v. Superior Ford, 577 F. 2d, at 457-459 (CA8); St. Germain v. Bank of Hawaii, 573 F. 2d 572, 573-574 (CA9 1977); United States ex rel. Hornell v. One 1976 Chevrolet, 585 F. 2d, at 981 (CA10); Price v. Franklin Investment Co., 187 U. S. App. D. C., at 393, 574 F. 2d, at 604. Official Staff Interpretation No. FC-0054 provides, in pertinent part: “It is staff’s opinion that the phrase 'default, delinquency, or similar charges in the event of late payments,’ found in § 128 (a) (9) and § 129 (a) (7) of the Truth in Lending Act and § 226.8 (b) (4) of Regulation Z, refers to specific sums assessed against a borrower solely because of failure to make payments when due. It is staff’s opinion that the mere right to accelerate contained in a contractual provision which sets out the creditor’s right to accelerate the entire obligation upon a certain event (generally the obligor’s failure to make a payment when due) is not a charge payable in the event of late payment. Therefore, it need not be disclosed under § 226.8 (b) (4). “Your [sic] refer to a prior Public Information Letter, No. 851, which discusses the right of acceleration.... Staff understands that letter to say that early payment of the balance of a precomputed finance charge obligation by a customer upon acceleration by the creditor is essentially the same as a prepayment of the obligation. Therefore, if the creditor does not rebate unearned finance charges in accordance with the rebate provisions disclosed under § 226.8 (b) (7) when the customer pays the balance of the obligation upon acceleration, any amounts retained beyond those which would have been rebated under the disclosed rebate provisions do represent the type of charge that must be disclosed under §226.8 (b)(4).” (Emphasis added.) Information Letter No. 851 states, in part: “For the purposes of Truth in Lending disclosures, this staff views an acceleration of payments as essentially a prepayment of the contract obligation. As such, the disclosure provisions of § 226.8 (b) (7)... of the Regulation, which require the creditor to identify the method of rebating any unearned portion of the finance charge or to disclose that no rebate would be made, apply. If the creditor rebates under one method for acceleration and another for voluntary prepayment, both methods would need to be identified under § 226.8 (b) (7).... “If, under the acceleration provision, a rebate is made by the creditor in accordance with the disclosure of the rebate provisions of §226.8 (b)(7), we believe that there is no additional ‘charge’ for late payments made by the customer and therefore no need to disclose under the provisions of § 226.8 (b) (4). On the other hand, if upon acceleration of the unpaid remainder of the total of payments, the creditor does not rebate unearned finance charges in accordance with the rebate provisions disclosed in § 226.8 (b) (7), any amounts retained beyond those which would have been rebated under the disclosed rebate provisions represent a ‘charge’ which should be disclosed under §226.8 (b)(4).” Information Letter No. 1208 states, in part: “In FC-0054, staff took the position that a creditor’s right of acceleration upon default by the obligor need not be disclosed as a default, delinquency, or late payment charge within the context of § 226.8 (b) (4). The interpretation went on to state, however, that since early payment of the balance of an obligation upon acceleration is essentially the same as voluntary prepayment, if the creditor does not rebate unearned finance charges in the former situation in accordance with the rebate provisions disclosed under §226.8 (b)(7), any extra amounts retained represent the type of charge that must be disclosed under § 226.8 (b) (4).” Information Letter No. 1324 states, in part: “The staff’s position... is that if a creditor rebates unearned -finance charges in connection with prepayment upon acceleration using the same method as for voluntary prepayment and that method has been properly disclosed in accordance with § 226.8 (b) (7), there is no default charge. However, any amounts retained by a creditor upon acceleration which would have been rebated under the disclosed rebate provisions would represent the type of default charge which must be disclosed pursuant to §226.8 (b)(4).” In St. Germain, the Court of Appeals spumed these administrative opinions as a source of interpretive guidance on the ground that the several letters were “conflicting signals.” 573 F. 2d, at 576. As we read the Staff Opinion.and Letters, however, they are fundamentally consistent, if somewhat inartfully drafted. The staff’s position in each appears to be that separate disclosure of acceleration rebate practices is unnecessary when those practices parallel voluntary prepayment rebate policy. On the other hand, where acceleration rebates are less than voluntary prepayment rebates, acceleration policy must be separately explained under §226.8 (b)(4) and, perhaps as well, under § 226.8 (b) (7). Neither the Opinion nor the Letters suggest that acceleration rebate policy must be separately disclosed in all instances. To be sure, the administrative interpretations proffered in this case were issued by the Federal Reserve staff rather than the Board. But to the extent that deference to administrative views is bottomed on respect for agency expertise, it is unrealistic to draw a radical distinction between opinions issued under the imprimatur of the Board and those submitted as official staff memoranda. See FRB Public Information Letter No. 444, [1969-1974 Transfer Binder] CCH Consumer Credit Guide ¶ 30,640. At any rate, it is unnecessary to explore the Board/staff difference at length, because Congress has conferred special status upon official staff interpretations. See 15 U. S. C. § 1640 (f); 12 CFR § 226.1 (d) (1979). Title 12 CFR § 226.1 (d) (1979) authorizes the issuance of official staff interpretations that trigger the application of § 1640 (f). Official interpretations are published in the Federal Register, and opportunity for public comment may be requested. 12 CFR § 226.1 (d). Unofficial interpretations have no special status under § 1640 (f). Although FMCC claims that its pre-1976 disclosure policy comported with Official Staff Interpretation No. FC-0054 (issued in 1977), it has not argued before this Court that it is entitled to the immunity afforded by the 1976 amendment to § 1640 (f). We need not decide, therefore, whether the 1976 amendment may be invoked with respect to contracts formed before its enactment or whether conformity with a subsequently issued official staff interpretation constitutes “compliance” within the terms of § 1640(f). That preference is understandable. As the divergence of judicial views on the acceleration disclosure issue illustrates, see n. 6, supra, litigation is not always the optimal process by means of which to formulate a coherent and predictable body of technical rules. The Federal	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 53 ]	sc_adminaction
PUTNAM et ux. v. COMMISSIONER OF INTERNAL REVENUE. No. 25. Argued October 17, 1956. Decided December 3, 1956. Richard E. Williams argued the cause for petitioners. With him on the brief was A. Lyman Beardsley. Philip Elman argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice, Harry Baum and Joseph F. Goetten. Mr. Justice Brennan delivered the opinion of the Court. The petitioner, Max Putnam, in December 1948, paid $9,005.21 to a Des Moines, Iowa, bank in discharge of his obligation as guarantor of the notes of Whitehouse Publishing Company. That corporation still had a corporate existence at the time of the payment but had ceased doing business and had disposed of its assets eighteen months earlier. The question for decision is whether, in the joint income tax return filed by Putnam and his wife for 1948, Putnam’s loss is fully deductible as a loss “incurred in [a] transaction ... for profit, though not connected with [his] trade or business” within the meaning of § 23 (e)(2) of the Internal Revenue Code of 1939, or whether it is a nonbusiness bad debt within the meaning of § 23 (k) (4) of the Code, and therefore deductible only as a short-term capital loss. The Commissioner determined that the loss was a non-business bad debt to be given short-term capital loss treatment. The Tax Court and the Court of Appeals for the Eighth Circuit sustained his determination. Because of an alleged conflict with decisions of the Courts of Appeals of other circuits, we granted certiorari. Putnam is a Des Moines lawyer who in 1945, in a venture not connected with his law practice, organized White-house Publishing Company with two others, a newspaperman and a labor leader, to publish a labor newspaper. Each incorporator received one-third of the issued capital stock, but Putnam supplied the property and cash with which the company started business. He also financed its operations, for the short time it was in business, through advances and guarantees of payment of salaries and debts. Just before the venture was abandoned, Putnam acquired the shares held by his fellow stockholders and in July 1947, as sole stockholder, wound up its affairs and liquidated its assets. The proceeds of sale were insufficient to pay the full amount due to the Des Moines bank on two notes given by the corporation and guaranteed by Putnam for moneys borrowed in August 1946 and March 1947. The familiar rule is that, instanter upon the payment by the guarantor of the debt, the debtor’s obligation to the creditor becomes an obligation to the guarantor, not a new debt, but, by subrogation, the result of the shift of the original debt from the creditor to the guarantor who steps into the creditor’s shoes. Thus, the loss sustained by the guarantor unable to recover from the debtor is by its very nature a loss from the worthlessness of a debt. This has been consistently recognized in the administrative and the judicial construction of the Internal Revenue laws which, until the decisions of the Courts of Appeals in conflict with the decision below, have always treated guarantors’ losses as bad debt losses. The Congress recently confirmed this treatment in the Internal Revenue Code of 1954 by providing that a payment by a noncorporate taxpayer in discharge of his obligation as guarantor of certain noncorporate obligations “shall be treated as a debt.” There is, then, no justification or basis for consideration of Putnam’s loss under the general loss provisions of § 23 (e) (2), i. e., as an ordinary nonbusiness loss sustained in a transaction entered into for profit. Congress has legislated specially in the matter of deductions of nonbusiness bad debt losses, i. e., such a loss is deductible only as a short-term capital loss by virtue of the special limitation provisions contained in § 23 (k) (4). The decision of this Court in Spring City Co. v. Commissioner, 292 U. S. 182, is apposite and controlling. There it was held that a debt excluded from deduction under § 234 (a)(5) of the Revenue Act of 1918 was not to be regarded as a loss deductible under 1234 (a)(4). Chief Justice Hughes said for the Court: “Petitioner also claims the right of deduction under § 234 (a) (4) of the Act of 1918 providing for the deduction of ‘Losses sustained during the taxable year and not compensated for by insurance or otherwise.’ We agree with the decision below that this subdivision and the following subdivision (5) relating to debts are mutually exclusive. We so assumed, without deciding the point, in Lewellyn v. Electric Reduction Co., 275 U. S. 243, 246. The making of the specific provision as to debts indicates that these were to be considered as a special class and that losses on debts were not to be regarded as falling under the preceding general provision. What was excluded from deduction under subdivision (5) cannot be regarded as allowed under subdivision (4). If subdivision (4) could be considered as ambiguous in this respect, the administrative construction which has been followed from the enactment of the statute— that subdivision (4) did not refer to debts — would be entitled to great weight. We see no reason for disturbing that construction.” 292 U. S., at 189. Here also the statutory scheme is to be understood as meaning that a loss attributable to the worthlessness of a debt shall be regarded as a bad debt loss, deductible as such or not at all. The decisions of the Courts of Appeals in conflict with the decision below turn upon erroneous premises. It is said that the guarantor taxpayer who involuntarily acquires a worthless debt is in a position no different from the taxpayer who voluntarily acquires a debt known by him to be worthless. The latter is treated as having acquired no valid debt at all. The situations are not analogous or comparable. The taxpayer who voluntarily buys a debt with knowledge that he will not be paid is rightly considered not to have acquired a debt but to have made a gratuity. In contrast the guarantor pays the creditor in compliance with the obligation raised by the law from his contract of guaranty. His loss arises not because he is making a gift to the debtor but because the latter is unable to reimburse him. Next it is assumed, at least in the Allen case, that a new obligation arises in favor of the guarantor upon his payment to the creditor. From that premise it is argued that such a debt cannot “become” worthless but is worthless from its origin, and so outside the scope of § 23 (k). This misconceives the basis of the doctrine of subrogation, apart from the fact that, if it were true that the debt did not “become” worthless, the debt nevertheless would not be regarded as an ordinary loss under § 23 (e). Spring City Co. v. Commissioner, supra. Under the doctrine of sub-rogation, payment by the guarantor, as we have seen, is treated not as creating a new debt and extinguishing-the original debt, but as preserving the original debt and merely substituting the guarantor for the creditor. The reality of the situation is that the debt is an asset of full value in the creditor’s hands because backed by the guaranty. The debtor is usually not able to reimburse the guarantor and in such cases that value is lost at the instant that the guarantor pays the creditor. But that this instant is also the instant when the guarantor acquires the debt cannot obscure the fact that the debt “becomes” worthless in his hands. Finally, the Courts of Appeals found support for their view in the following language taken from the opinion of this Court in Eckert v. Burnet, 283 U. S. 140: “The petitioner claims the right to deduct half that sum as a debt 'ascertained to be worthless and charged off within the taxable year,’ under the Revenue Act of 1926, c. 27, § 214 (a) (7); 44 Si>at. 9, 27. “It seems to us that the Circuit Court of Appeals sufficiently answered this contention by remarking that the debt was worthless when acquired. There was nothing to charge off. The petitioner treats the case as one of an investment that later turns out to be bad. But in fact it was the satisfaction of an existing obligation of the petitioner, having, it may be, the consequence of a momentary transfer of the old notes to the petitioner in order that they might be destroyed. It is very plain we think that the words of the statute cannot be taken to include a case of that kind.” 283 U. S., at 141. (Emphasis added.) That statement did not imply a determination by this Court that the guarantor’s loss was not to be treated as a bad debt. This Court was not faced with the question in Eckert. The point decided by the case was that a guarantor reporting on a cash basis and discharging his guaranty, not by a cash payment, but by giving the creditor his promissory note payable in a subsequent year, was not entitled to a bad debt loss deduction in the year in which he gave the note. The true significance of the quoted language is that, although “the debt was worthless when acquired,” it could not be “charged off” within the taxable year as the promissory note given for its payment was not paid or payable within that year. The objectives sought to be achieved by the Congress in providing short-term capital loss treatment for non-business bad debts are also persuasive that § 23 (k) (4) applies to a guarantor’s nonbusiness debt losses. The section was part of the comprehensive tax program enacted by the Revenue Act of 1942 to increase the national revenue to further the prosecution of the great war in which we were then engaged. It was also a means for minimizing the revenue losses attributable to the fraudulent practices of taxpayers who made to relatives and friends gifts disguised as loans. Equally, however, the plan was suited to put nonbusiness investments in the form of loans on a footing with other nonbusiness investments. The proposal originated with the Treasury Department, whose spokesman championed it as a means “to insure a fairer reflection of taxable income,” and the House Ways and Means Committee Report stated that the objective was “to remove existing inequities and to improve the procedure through which bad-debt deductions are taken.” We may consider Putnam’s case in the light of these revealed purposes. His venture into the publishing field was an investment apart from his law practice. The loss he sustained when his stock became worthless, as well as the losses from the worthlessness of the loans he made directly to the corporation, would receive capital loss treatment; the 1939 Code so provides as to nonbusiness losses both from worthless stock investments and from loans to a corporation, whether or not the loans are evidenced by a security. It is clearly a “fairer reflection” of Putnam’s 1948 taxable income to treat the instant loss similarly. There is no real or economic difference between the loss of an investment made in the form of a direct loan to a corporation and one made indirectly in the form of a guaranteed bank loan. The tax consequences should in all reason be the same, and are accomplished by § 23 (k) (4). The judgment is Affirmed. “SEC. 23. DEDUCTIONS FROM GROSS INCOME. “In computing net income there shall be allowed as deductions: “(e) Losses by Individuals. — In the case of an individual, losses sustained during the taxable year and not compensated for by insurance of otherwise— “ (2) if incurred in any transaction entered into for profit, though not connected with the trade or business; . . . 53 Stat. 13, 26 U. S. C. §23 (e)(2). “SEC. 23. DEDUCTIONS FROM GROSS INCOME. "(k) Bad Debts.— “(4) Non-business debts. — In the case of a taxpayer, other than a corporation, if a non-business debt becomes worthless within the taxable year, the loss resulting therefrom shall be considered a loss from the sale or exchange, during the taxable year, of a capital asset held for not more than 6 months. The term ‘non-business debt’ means a debt other than a debt evidenced by a security as defined in paragraph (3) and other than a debt the loss from the worthlessness of which is incurred in the taxpayer’s trade or business.” 53 Stat. 13, 56 Stat. 820, 26 U. S. C. § 23 (k) (4). 13 CCH TC Mem. Dec. 458. 224 F. 2d 947. Pollak v. Commissioner, 209 F. 2d 57 (C. A. 3d Cir.); Edwards v. Allen, 216 F. 2d 794 (C. A. 5th Cir.); Cudlip v. Commissioner, 220 F. 2d 565 (C. A. 6th Cir.). 350 U. S. 964. Petitioners abandoned in this Court the alternative contention made below that the loss was deductible in full as a business bad debt under § 23 (k) (1). United States v. Munsey Trust Co., 332 U. S. 234, 242; Aetna Life Ins. Co. v. Middleport, 124 U. S. 534, 548; Howell v. Commissioner; 69 F. 2d 447, 450; Scott v. Norton Hardware Co., 54 F. 2d 1047; Brandt, Suretyship and Guaranty (3d ed.), § 324; 38 C. J. S., Guaranty, § 111; 24 Am. Jur., Guaranty, § 125. Iowa follows this rule. Randell v. Fellers, 218 Iowa 1005, 252 N. W. 787; American Surety Co. v. State Trust & Sav. Bank, 218 Iowa 1, 254 N. W. 338. There is not involved here a question of the effect of state law upon federal tax treatment of Putnam’s loss. Cf. Watson v. Commissioner, 345 U. S. 544; Lyeth v. Hoey, 305 U. S. 188; Burnet v. Harmel, 287 U. S. 103. The bad debt deduction provisions of earlier Revenue Acts were enacted in §214 (a)(7) of the Revenue Act of 1921, 42 Stat. 239; § 214 (a) (7) of the Revenue Act of 1924, 43 Stat. 269; § 214 (a) (7) of the Revenue Act of 1926, 44 Stat. 26; § 23 (j) of the Revenue Act of 1928, 45 Stat. 799; §23 (j) of the Revenue Act of 1932, 47 Stat. 179; §23 (k) of the Revenue Act of 1934, 48 Stat. 688; § 23 (k) of the Revenue Act of 1936, 49 Stat. 1658; § 23 (k) of the Revenue Act of 1938, 52 Stat. 460; and § 23 (k) of the Internal Revenue Code of 1939, 53 Stat. 12. See, e. g., 2 Cum. Bull. 137; 5 Cum. Bull. 146; III — 1 Cum. Bull. 158; III — 1 Cum. Bull. 166; Shiman v. Commissioner, 60 F. 2d 65 (C. A. 2d Cir.); Hamlen v. Welch, 116 F. 2d 413 (C. A. 1st Cir.); Gimbel v. Commissioner, 36 B. T. A. 539; Roberts v. Commissioner, 36 B. T. A. 549; Sharp v. Commissioner, 38 B. T. A. 166; Hovey v. Commissioner, P-H 1939 B. T. A. Mem. Dec. ¶39,081; Pierce v. Commissioner, 41 B. T. A. 1261; Whitcher v. Welch, 22 F. Supp. 763. Similar decisions rendered since the Revenue Act of 1942 include: Ortiz v. Commissioner, 42 B. T. A. 173, reversed on another ground, sub nom. Helvering v. Wilmington Trust Co., 124 F. 2d 156, reversed (without discussion on this point), 316 U. S. 164; Burnett v. Commissioner, P-H 1942 B. T. A. Mem. Dec. ¶42,528; Ritter v. Commissioner, P-H 1946 TC Mem. Dec. ¶46,237; Greenhouse v. Commissioner, P-H 1954 TC Mem. Dec. ¶54,250; Estate of Rosset v. Commissioner, P-H 1954 TC Mem. Dec. ¶54,346; Watson v. Commissioner, 8 T. C. 569; Sherman v. Commissioner, 18 T. C. 746; Aftergood v. Commissioner, 21 T. C. 60; Stamos v. Commissioner, 22 T. C. 885. “SEC. 166. BAD DEBTS. “(f) Guarantor oe Certain Noncorporate Obligations. — A payment by the taxpayer (other than a corporation) in discharge of part or all of his obligation as a guarantor, endorser, or indemnitor of a noncorporate obligation the proceeds of which were used in the trade or business of the borrower shall be treated as a debt becoming worthless within such taxable year for purposes of this section (except that subsection (d) shall not apply), but only if the obligation of the borrower to the person to whom such payment was made was worthless (without regard to such guaranty, endorsement, or indemnity) at the time of such payment." 68A Stat. 50, 26 U. S. C. § 166 (f). And see 65 Yale L. J. 247. See n. 5, supra. Reading Co. v. Commissioner, 132 F. 2d 306; W. F. Young, Inc. v. Commissioner, 120 F. 2d 159; American Cigar Co. v. Commissioner, 66 F. 2d 425. The basis for this statement came from the opinion of the Court of Appeals for the Second Circuit and was explained by that court in its later opinion in Shiman v. Commissioner, 60 F. 2d 65, 67, as follows: “Though there was no debt until Shiman paid the brokers, it then became such at once and was known to be worthless as soon as it arose; verbally at any rate there is no difficulty. Nor is there any reason to impute a purpose to except such cases; the loss is as real and unavoidable as though the debt had had some value for a season. The analogy of section 204 (b) is apt. We can see no ground therefore for question except some of the language used in Eckert v. Burnet, 283 U. S. 140, 51 S. Ct. 373, 75 L. Ed. 911, taken from our opinion in 42 F. (2d) 158. That was quite another situation. Eckert, the taxpayer, had been an accommodation endorser for a corporation which became insolvent. When called upon to pay he gave his note instead, not payable within the year. The court refused to allow the deduction, because Eckert was keeping his books on a cash basis, but it intimated that when he paid he might succeed; until then he had done no more than change the form of the obligation. Yet if it were enough to defeat him that the debt was 'worthless when acquired,’ the same objection ought to be good after he had paid; contrary to what was suggested. We cannot therefore think that the language so thrown out was intended as an authoritative statement by which we must be bound.” See Helvering v. Price, 309 U. S. 409. The requirement that the debt be “ascertained to be worthless and charged off within the taxable year” was superseded in the Revenue Act of 1942, § 124 (a), by the requirement that the debt be one which “becomes worthless within the taxable year.” Chairman Doughton of the House Committee on Ways and Means opened the hearings on the bill which became the Revenue Act of 1942 with the statement: "... the meeting of the committee this morning is the first step in the consideration, preparation, and reporting of perhaps the largest tax bill that it has ever been the duty and responsibility of our committee to report. “We are faced with revenue needs and a tax program of a magnitude unthought of in modern times, and we all realize it is necessary to raise every dollar of additional revenue that can be raised without seriously disturbing or shattering our national economy.” Hearings before House Committee on Ways and Means on Revenue Revision of 1942, 77th Cong., 2d Sess. 1. Petitioners argue that this was its sole purpose and that the section should be construed as limited in application to such loans. The context of the segment of the House Ways and Means Committee Report discussing this objective does not support the petitioners' argument. H. R. Rep. No. 2333, 77th Cong., 2d Sess. 45: “C. Nonbusiness Bad Debts “The present law gives the same tax treatment to bad debts incurred in nonbusiness transactions as it allows to business bad debts. An exam-pie of a nonbusiness bad debt would be an unrepaid loan to a friend or relative, while business bad debts arise in the course of the taxpayer’s trade or business. This liberal allowance for non-business bad debts has suffered considerable abuse through taxpayers making loans which they do not expect to be repaid. This practice is particularly prevalent in the case of loans to persons with respect to whom the taxpayer is not entitled to a credit for dependents. This situation has presented serious administrative difficulties because of the requirement of proof. “The bill treats the loss from nonbusiness bad debts as a short-term capital loss. The effect of this provision is to take the loss fully into account, but to allow it to be used only to reduce capital gains. Like any other capital loss, however, the amount of such bad debt losses may be taken to the extent of $1,000 against ordinary income and the 5-year carry-over provision applies.” (Emphasis added.) Hearings before House Committee on Ways and Means on Revenue Revision of 1942, 77th Cong., 2d Sess. 90. H. R. Rep. No. 2333, 77th Cong., 2d Sess. 44. Section 23(g)(2) and (3) as to worthless stock. Section 23 (k) (2) (3) and (4) as to loans. As Judge Stewart pointed out in his dissenting opinion in the Cudlip case, 220 F. 2d, at 572: “Had the petitioner made the necessary additional investment in the conventional form of subscribing for stock, his loss upon the failure of the corporation would have been a capital loss, §23 (g)(2), I. R. C. Had he made the investment in the form of a loan to the corporation evidenced by an instrument bearing interest coupons, his loss would likewise have been a capital loss, § 23 (k) (2), I. R. C. Had he made the additional investment in the form of an ordinary loan to the corporation, his loss would likewise have been a capital loss, § 23 (k) (4) I. R. C., Commissioner of Internal Revenue v. Smith, supra. “Because the petitioner happened instead to risk his money by guaranteeing the corporation’s bank loans, the court now holds that the petitioner may take an ordinary loss, deductible in full from his ordinary income. Yet from the petitioner’s viewpoint, the situation would have been precisely the same had he himself borrowed the money and then lent it to the corporation. It therefore seems to me that the result reached by the court in this case is significantly unrealistic.” Upon this ground, contrary to the holding in Fox v. Commissioner, 190 F. 2d 101, the guarantor’s nonbusiness loss would receive short-term capital loss treatment despite the nonexistence of the debtor at the time of the guarantor’s payment to the creditor.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
IN RE RUFFALO. No. 73. Argued March 4, 1968. Decided April 8, 1968. Craig Spangenberg argued the cause and filed briefs for petitioner. Thomas V. Koykka argued the cause for the Ohio State and Mahoning County Bar Associations. With him on the brief were Samuel T. Gaines, Walter A. Porter, P. Paul Pusateri and Henry C. Robinson. Mr. Justice Douglas delivered the opinion of the Court. Petitioner was ordered indefinitely suspended from the practice of law by the Supreme Court of Ohio on two findings of alleged misconduct. Mahoning County Bar Assn. v. Ruffalo, 176 Ohio St. 263, 199 N. E. 2d 396. That order became final and is not here on review. The Federal District Court, after ordering petitioner to show cause why he should not be disbarred, found that there was no misconduct. In re Ruffalo, 249 F. Supp. 432 (D. C. N. D. Ohio). The Court of Appeals likewise ordered petitioner to show cause why he should not be stricken from the roll of that court on the basis of Ohio’s disbarment order. The majority held that while one of the two charges might not justify discipline, the other one did; and it disbarred petitioner from practice in that Court. 370 F. 2d 447 (C. A. 6th Cir.). The dissenting judge thought that neither charge justified suspension from practice. Id., at 460. The case is here on a writ of certiorari. 389 U. S. 815. Petitioner was an active trial lawyer who handled many Federal Employers’ Liability Act cases. The Association of American Railroads investigated his handling of claims and referred charges of impropriety to the President of the Mahoning County Bar Association who was also local counsel for the Baltimore & Ohio Railroad Co. See In re Ruffalo, 249 F. Supp. 432, 435, n. 3. The Mahoning County Bar Association then filed the charges against petitioner. In the state court proceedings, upon which the decision of the Court of Appeals relied (see Rule 6 (3) of the United States Court of Appeals for the Sixth Circuit), the Ohio Board of Commissioners on Grievances and Discipline originally charged petitioner with 12 counts of misconduct. Charges Nos. 4 and 5 accused petitioner of soliciting FELA plaintiffs as clients through an agent, Michael Orlando. At the hearings which followed, both Orlando and petitioner testified that Orlando did not solicit clients for petitioner but merely investigated FELA cases for him. It was brought out that some of Orlando’s investigations involved cases where his employer, the Baltimore & Ohio Railroad, was defendant. Immediately after hearing this testimony, the Board, on the third day of hearings, added a charge No. 13 against petitioner based on his hiring Orlando to investigate Orlando’s own employer. Counsel for petitioner objected, stating: “Oh, I object to that very highly. There is nothing morally wrong and there is nothing legally wrong with it. . . . When does the end of these amendments come? I mean the last minute you are here, [counsel for the county Bar Association] may bring in another amendment. I think this gentleman [petitioner] has a right to know beforehand what the charges are against him and be heard on those charges.” Motion to strike charge No. 13 was denied, but the Board gave petitioner a continuance in order to have time to respond to the new charge. The State Board found petitioner guilty of seven counts of misconduct, including No. 13. On review, the Supreme Court of Ohio found the evidence sufficient to sustain only two charges, one of them being No. 13, but concluded that the two violations required disbarment. The only charge on which the Court of Appeals acted was No. 13, which reads as follows: “That Respondent did conspire with one, Michael Orlando, and paid said Michael Orlando moneys for preparing lawsuits against the B. & O. Railroad, the employer of said Michael Orlando, during all the periods of time extending from 1957 to July of 1961, well knowing that said practice was deceptive in its nature and was morally and legally wrong as respects the employee, Michael Orlando, toward his employer, the B. & O. Railroad Company.” Though admission to practice before a federal court is derivative from membership in a state bar, disbarment by the State does not result in automatic disbarment by the federal court. Though that state action is entitled to respect, it is not conclusively binding on the federal courts. Theard v. United States, 354 U. S. 278, 281-282. Petitioner, active in the trial of FELA cases, hired a railroad man to help investigate the cases. He was Orlando, a night-shift car inspector for the Baltimore ■& Ohio Railroad Co. There was no evidence that Orlando ever investigated a case in the yard where he worked as inspector. There was no evidence that he ever investigated on company time. Orlando had no access to confidential information; and there was no claim he ever revealed secret matters or breached any trust. It is clear from the record that petitioner chose a railroad man to help him investigate those claims because Orlando knew railroading. One federal guidepost in this field is contained in § 10 of the Federal Employers’ Liability Act, as amended, 53 Stat. 1404, 45 U. S. C. § 60, which was enacted to encourage employees of common carriers to furnish information “to a person in interest,” as to facts incident to the injury or death of an employee. The Ohio Supreme Court, however, concluded that “one who believes that it is proper to employ and pay another to work against the interests of his regular employer is not qualified to be a member of the Ohio Bar.” 176 Ohio St., at 269, 199 N. E. 2d, at 401. We are urged to hold that petitioner’s efforts to conceal this employment relationship and the likelihood of a conflict of interest require the federal courts to respect the decision of the Ohio Supreme Court as being within the range of discretion. We do not pursue that inquiry. Nor do we stop to inquire whether the proceeding was defective because the Bar Association, the agency that made the charges against petitioner, was headed by counsel for the Baltimore & Ohio Railroad Co. against which petitioner filed several of his claims. For there is one other issue dispositive of the case which requires reversal. As noted, the charge (No. 13) for which petitioner stands disbarred was not in the original charges made against him. It was only after both he and Orlando had testified that this additional charge was added. Thereafter, no additional evidence against petitioner relating to charge No. 13 was taken. Rather, counsel for the county bar association said: “We will stipulate that as far as we are concerned, the only facts that we will introduce in support of Specification No. 13 are the statements that Mr. Ruffalo has made here in open court and the testimony of Mike Orlando from the witness stand. Those are the only facts we have to support this Specification No.. 13.” There was no de novo hearing before the Court of Appeals. Rather, it rested on the Ohio court’s record and findings: “We have before us, and have reviewed, the entire record developed by the Ohio, proceedings, but think it proper to dispose of the matter primarily upon the charges on which the Ohio Court disciplined Mr. Ruffalo. The facts as to these are not in dispute. We consider whether we find insupportable the Ohio Court’s determination that such facts disclosed unprofessional conduct warranting the discipline imposed and whether they warrant similar discipline by us.” 370 F. 2d, at 449. The Court of Appeals proceeded to analyze the “admitted facts of Charge No. 13” as found by the Ohio court and the Ohio court’s ruling on those facts. Id., at 450-452. If there are any constitutional defects in what the Ohio court did concerning Charge 13, those defects are reflected in what the Court of Appeals decided. The Court of Appeals stated: “We do not find in the record of the state proceedings, ‘Such an infirmity of proof as to the facts found to have established the want of ... [Ruffalo’s] fair private and professional character’ to lead us to a conviction that we cannot, consistent with our duty, ‘accept as final the conclusion’ of the Supreme Court and the Ohio bar.” Id., at 453. We turn then to the question whether in Ohio’s procedure there was any lack of due process. Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex parte Garland, 4 Wall. 333, 380; Spevack v. Klein, 385 U. S. 511, 515. He is accordingly entitled to procedural due process, which includes fair notice of the charge. See In re Oliver, 333 U. S. 257, 273. It was said in Randall v. Brigham, 7 Wall. 523, 540, that when proceedings for disbarment are “not taken for matters occurring in open court, in the presence of' the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence.” Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be followed by disbarment here is whether “the state procedure from want of notice or opportunity to be heard was wanting in due process.” Selling v. Radford, 243 U. S. 46, 51. In the present case petitioner had no notice that his employment of Orlando would be considered a disbarment offense until after both he and Orlando had testified at length on all the material facts pertaining to this phase of the case. As Judge Edwards, dissenting below, said, “Such procedural violation of due process would never pass muster in any normal civil or criminal litigation.” 370 F. 2d, at 462. These are adversary proceedings of a quasi-criminal nature. Cf. In re Gault, 387 U. S. 1, 33. The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh. How the charge would have been met had it been originally included in those leveled against petitioner by the Ohio Board of Commissioners on Grievances and Discipline no one knows. This absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process. Reversed. MR. Justice Black, for reasons stated in the Court’s opinion and many others, agrees with the Court’s judgment and opinion. Mr. Justice Stewart took no part in the decision of this case. After the Court of Appeals decision disbarring petitioner, the District Court, which had deferred a final order pending the decision of the Court of Appeals, suspended petitioner from practice in the District Court. The District Court judge said he had an “abiding conviction” that his prior decision finding no grounds for suspension was correct but concluded that orderly administration of justice required the District Court to defer to its Court of Appeals. The District Court’s order is not before us for review. 45 U. S. C. § 60 provides in part: “Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense: Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.” Rule 15 (a), Federal Rules of Civil Procedure, provides in part: “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” The Ohio State Bar Association and Mahoning County Bar Association, amici curiae in support of the order of the Court of Appeals, argue that there was no due process violation because the State Board gave petitioner several months to respond to charge No. 13. This argument overlooks the fact that serious prejudice to petitioner may well have occurred because of the content of the original 12 specifications of misconduct. He may well have been lulled “into a false sense of security” (Bouie v. City of Columbia, 378 U. S. 347, 352) that he could rebut charges Nos. 4 and 5 by proof that Orlando was his investigator rather than a solicitor of clients. In that posture he had “no reason even to suspect” (ibid.) that in doing so he would be, by his own testimony, irrevocably assuring his disbarment under charges not yet made.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
HAZELTINE RESEARCH, INC., et al. v. BRENNER, COMMISSIONER OF PATENTS. No. 57. Argued November 17, 1965. Decided December 8, 1965. Laurence B. Dodds argued the cause for petitioners. With him on the briefs was George R. Jones. J. William Doolittle argued the cause for respondent. On the brief were Solicitor General Marshall, Assistant Attorney General Douglas and Lawrence R. Schneider. Irwin M. Aisenberg filed a brief, as amicus curiae, urging reversal. Mr. Justice Black delivered the opinion of the Court. The sole question presented here is whether an application for patent pending in the Patent Office at the time a second application is filed constitutes part of the “prior art” as that term is used in 35 U. S. C. § 103 (1964 ed.), which reads in part: “A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art . . . .” The question arose in this way. On December 23, 1957, petitioner Robert Regis filed an application for a patent on a new and useful improvement on a microwave switch. On June 24, 1959, the Patent Examiner denied Regis’ application on the ground that the invention was not one which was new or unobvious in light of the prior art and thus did not meet the standards set forth in § 103. The Examiner said that the invention was unpatentable because of the joint effect of the disclosures made by patents previously issued, one to Carlson (No. 2,491,644) and one to Wallace (No. 2,822,526). The Carlson patent had been issued on December 20, 1949, over eight years prior to Regis’ application, and that patent is admittedly a part of the prior art insofar as Regis’ invention is concerned. The Wallace patent, however, was pending in the Patent Office when the Regis application was filed. The Wallace application had been pending since March 24, 1954, nearly three years and nine months before Regis filed his application and the Wallace patent was issued on February 4, 1958, 43 days after Regis filed his application. After the Patent Examiner refused to issue the patent, Regis appealed to the Patent Office Board of Appeals on the ground that the Wallace patent could not be properly considered a part of the prior art because it had been a “co-pending patent” and its disclosures were secret and not known to the public. The Board of Appeals rejected this argument and affirmed the decision of the Patent Examiner. Regis and Hazeltine, which had an interest as assignee, then instituted the present action in the District Court pursuant to 35 U. S. C. § 145 (1964 ed.) to compel the Commissioner to issue the patent. The District Court agreed with the Patent Office that the co-pending Wallace application was a part of the prior art and directed that the complaint be dismissed. 226 F. Supp. 459. On appeal the Court of Appeals affirmed per curiam. 119 U. S. App. D. C. 261, 340 F. 2d 786. We granted certiorari to decide the question of whether a co-pending application is included in the prior art, as that term is used in 35 U. S. C. § 103. 380 U. S. 960. Petitioners’ primary contention is that the term “prior art,” as used in § 103, really means only art previously publicly known. In support of this position they refer to a statement in the legislative history which indicates that prior art means “what was known before as described in section 102.” They contend that the use of the word “known” indicates that Congress intended prior art to include only inventions or. discoveries which were already publicly known at the time an invention was made. If petitioners are correct in their interpretation of “prior art,” then the Wallace invention, which was not publicly known at the time the Regis application was filed, would not be prior art with regard to Regis’ invention. This is true because at the time Regis filed his application the Wallace invention, although pending in the Patent Office, had never been made public and the Patent Office was forbidden by statute from disclosing to the public, except in special circumstances, anything contained in the application. The Commissioner, relying chiefly on Alexander Milburn Co. v. Davis-Bournonville Co., 270 U. S. 390, contends that when a patent is issued, the disclosures contained in the patent become a part of the prior art as of the time the application was filed, not, as petitioners contend, at the time the patent is issued. In that case a patent was held invalid because, at the time it was applied for, there was already pending an application which completely and adequately described the invention. In holding that the issuance of a patent based on the first application barred the valid issuance of a patent based on the second application, Mr. Justice Holmes, speaking for the Court, said, “The delays of the patent office ought not to cut down the effect of what has been done. . . . [The first applicant] had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing [the second applicant] to profit by the delay . . . .” At p. 401. In its revision of the patent laws in 1952, Congress showed its approval of the holding in Milburn by adopting 35 U. S. C. § 102 (e) (1964 ed.) which provides that a person shall be entitled to a patent unless “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent.” Petitioners suggest, however, that the question in this case is not answered by mere reference to § 102 (e), because in Milburn, which gave rise to that section, the co-pending applications described the same identical invention. But here the Regis invention is not precisely the same as that contained in the Wallace patent, but is only made obvious by the Wallace patent in light of the Carlson patent. We agree with the Commissioner that this distinction is without significance here. While we think petitioners’ argument with regard to § 102 (e) is interesting, it provides no reason to depart from the plain holding and reasoning in the Milburn case. The basic reasoning upon which the Court decided the Milburn case applies equally well here. When Wallace filed his application, he had done what he could to add his disclosures to the prior art. The rest was up to the Patent Office. Had the Patent Office acted faster, had it issued Wallace’s patent two months earlier, there would have been no question here. As Justice Holmes said in Mil-burn, “The delays of the patent office ought not to cut down the effect of what has been done.” P. 401. To adopt the result contended for by petitioners would create an area where patents are awarded for unpatentable advances in the art. We see no reason to read into § 103 a restricted definition of “prior art” which would lower standards of patentability to such an extent that there might exist two patents where the Congress has plainly directed that there should be only one. Affirmed. It is not disputed that Regis’ alleged invention, as well as his application, was made after Wallace’s application was filed. There is, therefore, no question of priority of invention before us. H. R. Rep. No. 1923, 82d Cong., 2d Sess., p. 7 (1952). 35 U. S. C. § 122 (1964 ed.) states: “Applications for patents shall be kept in confidence by the Patent Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.”	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 93 ]	sc_adminaction
CHEMICAL MANUFACTURERS ASSOCIATION et al. v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. No. 83-1013. Argued November 6, 1984 Decided February 27, 1985 White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Powell, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined, and in Parts I, II, and III of which O’Connor, J., joined, post, p. 134. O’Connor, J., filed a dissenting opinion, post, p. 165. Samuel A. Alito, Jr., argued the cause for petitioners in both cases and filed briefs for petitioner in No. 83-1373. With him on the briefs were Solicitor General Lee, Assistant Attorney General Habicht, and Deputy Solicitor General Claiborne. Theodore L. Garrett filed briefs for petitioners in No. 83-1013. Frances Dubrowski argued the cause for respondents in both cases and filed a brief for respondent Natural Resources Defense Council, Inc. Together with No. 83-1373, United States Environmental Protection Agency v. Natural Resources Defense Council, Inc., et al., also on certio-rari to the same court. Robin S. Conrad and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of New York by Robert Abrams, Attorney General, Peter H. Schiff, and James A. Sevinsky and Kathleen Liston Morrison, Assistant Attorneys General; and for the Southeastern Fisheries Association, Inc., by Eldon V. C. Greenberg. Justice White delivered the opinion of the Court. These cases present the question whether the Environmental Protection Agency (EPA) may issue certain variances from toxic pollutant effluent limitations promulgated under the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq. I As part of a consolidated lawsuit, respondent Natural Resources Defense Council (NRDC) sought a declaration that §301(1) of the Clean Water Act, 33 U. S. C. §1311(0, prohibited EPA from issuing “fundamentally different factor” (FDF) variances for pollutants listed as toxic under the Act. Petitioners EPA and Chemical Manufacturers Association (CMA) argued otherwise. To understand the nature of this controversy, some background with respect to the statute and the case law is necessary. The Clean Water Act, the basic federal legislation dealing with water pollution, assumed its present form as the result of extensive amendments in 1972 and 1977. For direct dischargers — those who expel waste directly into navigable waters — the Act calls for a two-phase program of technology-based effluent limitations, commanding that dischargers comply with the best practicable control technology currently available (BPT) by July 1, 1977, and subsequently meet the generally more stringent effluent standard consistent with the best available technology economically achievable (BAT). Indirect dischargers — those whose waste water passes through publicly owned treatment plants — are similarly required to comply with pretreatment standards promulgated by EPA under §307 of the Act, 33 U. S. C. § 1317(b), for pollutants not susceptible to treatment by sewage systems or which would interfere with the operation of those systems. Relying upon legislative history suggesting that pretreatment standards are to be comparable to limitations for direct dischargers, see H. R. Rep. No. 95-830, p. 87 (1977), and pursuant to a consent decree, EPA has set effluent limitations for indirect dischargers under the same two-phase approach applied to those discharging waste directly into navigable waters. Thus, for both direct and indirect dischargers, EPA considers specific statutory factors and promulgates regulations creating categories and classes of sources and setting uniform discharge limitations for those classes and categories. Since application of the statutory factors varies on the basis of the industrial process used and a variety of other factors, EPA has faced substantial burdens in collecting information adequate to create categories and classes suitable for uniform effluent limits, a burden complicated by the time deadlines it has been under to accomplish the task. Some plants may find themselves classified within a category of sources from which they are, or claim to be, fundamentally different in terms of the statutory factors. As a result, EPA has developed its FDF variance as a mechanism for ensuring that its necessarily rough-hewn categories do not unfairly burden atypical plants. Any interested party may seek an FDF variance to make effluent limitations either more or less stringent if the standards applied to a given source, because of factors fundamentally different from those considered by EPA in setting the limitation, are either too lenient or too strict. The 1977 amendments to the Clean Water Act reflected Congress’ increased concern with the dangers of toxic pollutants. The Act, as then amended, allows specific statutory modifications of effluent limitations for economic and water-quality reasons in §§ 301(c) and (g). Section 301(1), however, added by the 1977 amendments, provides: “The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act.” 91 Stat. 1590. In the aftermath of the 1977 amendments, EPA continued its practice of occasionally granting FDF variances for BPT requirements. The Agency also promulgated regulations explicitly allowing FDF variances for pretreatment standards and BAT requirements. Under these regulations, EPA granted FDF variances, but infrequently. As part of its consolidated lawsuit, respondent NRDC here challenged pretreatment standards for indirect dischargers and sought a declaration that § 301(1) barred any FDF variance with respect to toxic pollutants. In an earlier case, the Fourth Circuit had rejected a similar argument, finding that § 301(1) was ambiguous on the issue of whether it applied to FDF variances and therefore deferring to the administrative agency’s interpretation that such variances were permitted. Appalachian Power Co. v. Train, 620 F. 2d 1040, 1047-1048 (1980). Contrariwise, the Third Circuit here ruled in favor of NRDC, and against petitioners EPA and CMA, holding that § 301(1) forbids the issuance of FDF variances for toxic pollutants. National Assn. of Metal Finish ers v. EPA, 719 F. 2d 624 (1983). We granted certiorari to resolve this conflict between the Courts of Appeals and to decide this important question of environmental law. 466 U. S. 957 (1984). We reverse. II Section 301(1) states that EPA may not “modify any requirement of § 301 insofar as toxic materials are concerned. EPA insists that §301(1) prohibits only those modifications expressly permitted by other provisions of §301, namely, those that § 301(c) and § 301(g) would allow on economic or water-quality grounds. Section 301(1), it is urged, does not address the very different issue of FDF variances. This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that EPA might have adopted but only that EPA’s understanding of this very “complex statute” is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA. Train v. NRDC, 421 U. S. 60, 75, 87 (1975); see also Chevron U. S. A. Inc. v. NRDC, 467 U. S. 837 (1984). Of course, if Congress has clearly expressed’ an intent contrary to that of the Agency, our duty is to enforce the will of Congress. Chevron, supra, at 843, n. 9; SEC v. Sloan, 436 U. S. 103, 117-118 (1978). A NRDC insists that the language of § 301(1) is itself enough to require affirmance of the Court of Appeals, since on its face it forbids any modifications of the effluent limitations that EPA must promulgate for toxic pollutants. If the word “modify” in §301(1) is read in its broadest sense, that is, to encompass any change or alteration in the standards, NRDC is correct. But it makes little sense to construe the section to forbid EPA to amend its. own standards, even to correct an error or to impose stricter requirements. Furthermore, reading § 301(1) in this manner would forbid what § 307(b)(2) expressly directs: EPA is there required to “revise” its pretreatment standards “from time to time, as control technology, processes, operating methods, or other alternatives change.” As NRDC does and must concede, Tr. of Oral Arg. 25-26, § 301(1) cannot be read to forbid every change in the toxic waste standards. The word “modify” thus has no plain meaning as used in §301(1), and is the proper subject of construction by EPA and the courts. NRDC would construe it to forbid the kind of alteration involved in an FDF variance, while the Agency would confine the section to prohibiting the partial modifications that § 301(c) would otherwise permit. Since EPA asserts that the FDF variance is more like a revision permitted by § 307 than it is like a § 301(c) or (g) modification, and since, as will become evident, we think there is a reasonable basis for such a position, we conclude that the statutory language does not foreclose the Agency’s view of the statute. We should defer to that view unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent on the part of Congress. NRDC submits that the legislative materials evince such a contrary intent. We disagree. B The legislative history of § 301(1) is best understood in light of its evolution. The 1972 amendments to the Act added § 301(c), which allowed EPA to waive BAT and pretreatment requirements on a case-by-case basis when economic circumstances justified such a waiver. Pub. L. 92-500, 86 Stat. 845. In 1977, the Senate proposed amending § 301(c) by prohibiting such waivers for toxic pollutants. See S. 1952, 92d Cong., 2d Sess., 30 (1977), Leg. Hist. 584, and S. Rep. No. 95-370, p. 44 (1977), Leg. Hist. 677. At the same time, the Senate bill added what became § 301(g), which allowed waivers from BAT and pretreatment standards where such waivers would not impair water quality, but which, like § 301(c), prohibited waivers for toxic pollutants. S. 1952, at 28-29, Leg. Hist. 582-583. The bill did not contain § 301(1). That section was proposed by the Conference Committee, which also deleted the toxic pollutant prohibition in § 301(c) and redrafted § 301(g) to prohibit water-quality waivers for conventional pollutants and thermal discharges as well as for toxic pollutants. While the Conference Committee Report did not explain the reason for proposing §301(1), Representative Roberts, the House floor manager, stated: “Due to the nature of toxic pollutants, those identified for regulation will not be subject to waivers from or modification of the requirements prescribed under this section, specifically, neither section 301(c) waivers based on the economic capability of the discharger nor 301(g) waivers based on water quality considerations shall be available.” Leg. Hist. 328-329 (emphasis added). Another indication that Congress did not intend to forbid FDF waivers as well as §§ 301(c) and (g) modifications is its silence on the issue. Under NRDC’s theory, the Conference Committee did not merely tinker with the wording of the Senate bill, but boldly moved to eliminate FDF variances. But if that was the Committee’s intention, it is odd that the Committee did not communicate it to either House, for only a few months before we had construed the Act to permit the very FDF variance NRDC insists the Conference Committee was silently proposing to abolish. In E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112 (1977), we upheld EPA’s class and category effluent limitations, relying on the availability of FDF waivers. Id., at 128. Congress was undoubtedly aware of Du Pont, and absent an expression of legislative will, we are reluctant to infer an intent to amend the Act so as to ignore the thrust of an important decision. Edmonds v. Compagnie Generate Transatlantique, 443 U. S. 256, 266-267 (1979). NRDC argues that Congress’ discussion of the Act’s provisions supports its position. Several legislators’ comments seemed to equate “modifications” with “waivers” or “variances.” Many of these statements, however, came in the specific context of discussing the “waiver” provisions of §§ 301(c) and (g), not the prohibition in §301(1). See, e. g., 123 Cong. Rec. 39183-39184 (1977), Leg. Hist. 458, 461 (Sen. Muskie); 123 Cong. Rec. 38961 (1977), Leg. Hist. 331 (Rep. Roberts); S. Rep. No. 95-370, pp. 40-44, Leg. Hist. 673-677 (discussing water-quality based modifications). Simply because Members of Congress or Committees referred to modifications authorized by §§ 301(c) and (g) as “variance” provisions, does not mean that FDF variances are also modifications barred by §301(1). After examining the wording and legislative history of the statute, we agree with EPA and CMA that the legislative history itself does not evince an unambiguous congressional intention to forbid all FDF waivers with respect to toxic materials. Chevron, 467 U. S., at 842-843, and n. 9. C Neither are we convinced that FDF variances threaten to frustrate the goals and operation of the statutory scheme set up by Congress. The nature of FDF variances has been spelled out both by this Court and by the Agency itself. The regulation explains that its purpose is to remedy categories which were not accurately drawn because information was either not available to or not considered by the Administrator in setting the original categories and limitations. 40 CFR §403.13(b) (1984). An FDF variance does not excuse compliance with a correct requirement, but instead represents an acknowledgment that not all relevant factors were taken sufficiently into account in framing that requirement originally, and that those relevant factors, properly considered, would have justified — indeed, required — the creation of a subcategory for the discharger in question. As we have recognized, the FDF variance is a laudable corrective mechanism, “an acknowledgment that the uniform... limitation was set without reference to the full range of current practices, to which the Administrator was to refer.” EPA v. National Crushed Stone Assn., 449 U. S. 64, 77-78 (1980). It is, essentially, not an exception to the standard-setting process, but rather a more fine-tuned application of it. We are not persuaded by NRDC’s argument that granting FDF variances is inconsistent with the goal of uniform effluent limitations under the Act. Congress did intend uniformity among sources in the same category, demanding that “similar point sources with similar characteristics... meet similar effluent limitations,” S. Rep. No. 92-1236, p. 126 (1972). EPA; however, was admonished to take into account the diversity within each industry by establishing appropriate subcategories. Leg. Hist. 455. NRDC concedes that EPA could promulgate rules under §307 of the Act creating a subcategory for each source which is fundamentally different from the rest of the class under the factors the EPA must consider in drawing categories. The same result is produced by the issuance of an FDF variance for the same failure properly to subdivide a broad category. Since the dispute is therefore reduced to an argument over the means used by EPA to define subcategories of indirect dischargers in order to achieve the goals of the Act, these are particularly persuasive cases for deference to the Agency’s interpretation. Cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 543 (1978); NLRB v. Bell Aerospace Co., 416 U. S. 267, 293 (1974). NRDC argues, echoing the concern of the Court of Appeals below, that allowing FDF variances will render meaningless the § 301(1) prohibition against modifications on the basis of economic and water-quality factors. That argument ignores the clear difference between the purpose of FDF waivers and that of §§ 301(c) and (g) modifications, a difference we explained in National Crushed Stone. A discharger that satisfies the requirements of § 301(c) qualifies for a variance “simply because [it] could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered” in creating a category and setting an effluent limitation. 449 U. S., at 78. A § 301(c) modification forces “a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on one particular operator, rather than on another who might be economically better off.” Ibid. FDF variances are specifically unavailable for the grounds that would justify the statutory modifications. 40 CFR §§403.13(e)(3) and (4) (1984). Both a source’s inability to pay the foreseen costs, grounds for a § 301(c) modification, and the lack of a significant impact on water quality, grounds for a § 301(g) modification, are irrelevant under FDF variance procedures. Ibid.; see also Crown Simpson Pulp Co. v. Costle, 642 F. 2d 323 (CA9), cert. denied, 454 U. S. 1053 (1981). EPA and CMA point out that the availability of FDF variances makes bearable the enormous burden faced by EPA in promulgating categories of sources and setting effluent limitations. Acting under stringent timetables, EPA must collect and analyze large amounts of technical information concerning complex industrial categories. Understandably, EPA may not be apprised of and will fail to consider unique factors applicable to atypical plants during the categorical rulemaking process, and it is thus important that EPA’s nationally binding categorical pretreatment standards for indirect dischargers be tempered' with the flexibility that the FDF variance mechanism offers, a mechanism repugnant to neither the goals nor the operation of the Act. HH HH HH Viewed in its entirety, neither the language nor the legislative history of the Act demonstrates a clear congressional intent to.forbid EPA’s sensible variance mechanism for tailoring the categories it promulgates. In the absence of a congressional directive to the contrary, we accept EPA’s conclusion that § 301(1) does not prohibit FDF variances. That interpretation gives the term “modify” a consistent meaning in §§ 301(c), (g), and (1), and draws support from the legislative evolution of §301(1) and from congressional silence on whether it intended to forbid FDF variances altogether and thus to obviate our decision in Du Pont. Here we are not dealing with an agency’s change of position with the advent of a different administration, but rather with EPA’s consistent interpretation since the 1970’s. NRDC argues that its construction of the statute is better supported by policy considerations. But we do not sit to judge the relative wisdom of competing statutory interpretations. Here EPA’s construction, fairly understood, is not inconsistent with the language, goals, or operation of the Act. Nor does the administration of EPA’s regulation undermine the will of Congress. The judgment of the Court of Appeals is reversed. It is so ordered. Hereinafter, the Clean Water Act will be referred to, interchangeably, by its entire name or simply as the Act. EPA is required, under § 307(a)(1) of the Act, 33 U. S. C. § 1317(a)(1), to publish a list of toxic pollutants. Upon designation of a pollutant as toxic, § 307(a)(2), 33 U. S. C. § 1317(a)(2), requires EPA to set standards for its discharge. See E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112, 121 (1977). BAT standards are set on the basis of categories and classes of sources under rules promulgated by the EPA under § 304(b), 33 U. S. C. § 1314(b). Although the statute indicated that BPT standards be established for point sources, rather than categories of sources, we held in Du Pont that the EPA could also set BPT limitations on the basis of classes and categories, as long as allowance was made for variations in individual plants through a variance procedure. 430 U. S., at 128. Lawsuits by NRDC resulted in a consent decree placing EPA under deadlines for promulgating categorical pretreatment standards based on BPT and BAT criteria. NRDC v. Train, 8 ERC 2120, 6 Env. L. Rep. 20588 (DC 1976), modified sub nom. NRDC v. Costle, 12 ERC 1833, 9 Env. L. Rep. 20176 (DC 1979), modified sub nom. NRDC v. Gorsuch, No. 72-2153 (Oct. 26, 1982), modified sub nom. NRDC v. Ruckelshaus, No. 73-2153 (Aug. 2,1983), and 14 Env. L. Rep. 20185 (1984). In the 1977 amendments to the Act, Congress sanctioned this approach to establishing pretreatment standards for indirect dischargers. Environmental Defense Fund, Inc. v. Costle, 205 U. S. App. D. C. 101, 115-116, 636 F. 2d 1229, 1243-1244 (1980). The factors relating to the assessment of BAT standards, set out in § 304(b)(2)(B) of the Act, include the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, the cost of achieving effluent reduction, and nonwater-quality environmental impacts. 33 U. S. C. § 1314(b)(2)(B). See n. 4, supra. The challenged FDF variance regulation with respect to indirect dischargers, 40 CFR §403.13 (1984), provides in relevant part: “§403.13 Variances from categorical pretreatment standards for fundamentally different factors. “(a) Definition. The term ‘Requester’ means an Industrial User or a [publicly owned treatment work] or other interested person seeking a variance from the limits specified in a categorical Pretreatment Standard. “(b) Purpose and scope. (1) In establishing categorical Pretreatment Standards for existing sources, the EPA will take into account all the information it can collect, develop and solicit regarding the factors relevant to pretreatment standards under section 307(b). In some cases, information which may affect these Pretreatment Standards will not be available or, for other reasons, will not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the limits in categorical Pretreatment Standards, making them either more or less stringent, as they apply to a certain Industrial User within an industrial category or subcategory. This will only be done if data specific to that Industrial User indicates it presents factors fundamentally different from those considered by EPA in developing the limit at issue. Any interested person believing that factors relating to an Industrial User are fundamentally different from the factors considered during development of a categorical Pretreatment Standard applicable to that User and further, that the existence of those factors justifies a different discharge limit from that specified in the applicable categorical Pretreatment Standard, may request a fundamentally different factors variance under this section or such a variance request may be initiated by the EPA. “(c) Criteria — (1) General Criteria. A request for a variance based upon fundamentally different factors shall be approved only if: “(i) There is an applicable categorical Pretreatment Standard which specifically controls the pollutant for which alternative limits have been requested; and “(ii) Factors relating to the discharge controlled by the categorical Pretreatment Standard are fundamentally different from the factors considered by EPA in establishing the Standards; and “(iii) The request for a variance is made in accordance with [applicable procedural requirements]. “(2) Criteria applicable to less stringent limits. A variance request for the establishment of limits less stringent than required by the Standard shall be approved only if: “(i) The alternative limit requested is no less stringent than justified by the fundamental difference; “(ii) The alternative limit will not result in a violation of prohibitive discharge standards prescribed by or established under § 403.5; “(iii) The alternative limit will not result in a non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the Pretreatment Standards; and “(iv) Compliance with the Standards (either by using the technologies upon which the Standards are based or by using other control alternatives) would result in either: “(A) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the Standards; or “(B) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the Standards. “(3) Criteria applicable to more stringent limits. A variance request for the establishment of limits more stringent than required by the Standards shall be approved only if: “(i) The alternative limit request is no more stringent than justified by the fundamental difference; and “(ii) Compliance with the alternative limit would not result in either: “(A) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the Standards; or “(B) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the Standards. ed) Factors considered fundamentally different. Factors which may be considered fundamentally different are: “(1) The nature or quality of pollutants contained in the raw waste load of the User’s process wastewater: “(2) The volume of the User’s process wastewater and effluent discharged; “(3) Non-water quality environmental impact of control and treatment of the User’s raw waste load; “(4) Energy requirements of the application of control and treatment technology; “(5) Age, size, land availability, and configuration as they relate to the User’s equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology; “(6) Cost of compliance with required control technology. “(e) Factors which will not be considered fundamentally different. A variance request or portion of such a request under this section may not be granted on any of the following grounds: “(1) The feasibility of installing the required waste treatment equipment within the time the Act allows; “(2) The assertion that the Standards cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factors listed in paragraph (d) of this section; “(3) The User’s ability to pay for the required waste treatment; or “(4) The impact of a Discharge on the quality of the [publicly owned treatment works’] receiving waters.” The regulation also provides for public notice of the FDF application and opportunity for public comments and a public hearing. EPA has promulgated an analogous provision for direct dischargers, 40 CFR § 125.30 (1984). Sources subject to new source performance standards (NSPS) under the Act are those who begin construction after the publication of proposed new source standards, 33 U. S. C. § 1316, and they are ineligible for FDF variances. See 40 CFR § 403.13(b) (1984). 33U. S. C. §§ 1311(c) and (g). Those provisions explain in relevant part: “(c) The Administrator may modify the requirements of [§ 301’s effluent limitations] with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. “(g)(1) The Administrator, with the concurrence of the State, shall modify the requirements of [§ 301’s effluent limitations] with respect to the discharge of any pollutant (other than pollutants identified pursuant to section 1314(a)(4) of this title, toxic pollutants subject to section 1317(a) of this title, and the thermal component of discharges) from any point soured upon a showing by the owner or operator of such a point source satisfactory to the Administrator that— “(C) such modification will not interfere with the attainment or maintenance of that water quality which shall assure protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities, in and on the water and such modification will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment....” EPA and NRDC appear to be at odds as to whether § 301(c) and § 301(g) modifications are available to indirect dischargers as well as direct dis-chargers. Compare Brief for EPA 33, n. 23, and Reply Brief for EPA 2-3, with Brief for NRDC 29, and n. 41. Resolution of the seeming disagreement is not necessary to adjudicate these cases. 40 CFR § 403.13 (1984). This variance regulation was issued on June 26, 1978, 43 Fed. Reg. 27736-27773, and amended on January 28, 1981, 46 Fed. Reg. 9404-9460. The 1978 regulation differed in respects not relevant here. See 44 Fed. Reg. 32854, 32893-32894 (1979). NRDC áeknowledges the limited availability of FDF variances. Brief for NRDC in Opposition	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 32 ]	sc_adminaction
EDENFIELD et al. v. FANE No. 91-1594. Argued December 7, 1992 Decided April 26, 1993 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Scalia, Souter, and Thomas, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 777. O’Con-nor, J., filed a dissenting opinion, post, p. 778. Parker D. Thomson, Special Assistant Attorney General of Florida, argued the cause for petitioners. With him on the briefs were Robert A. Butterworth, Attorney General, John J. Rimes III, Assistant Attorney General, and Carol A. Licko, Special Assistant Attorney General. David C. Vladeck argued the cause for respondent. With him on the brief was Alan B. Morrison Briefs of amici curiae urging affirmance were filed for the American Advertising Federation et al. by Richard E. Wiley, Howard H. Bell, Gilbert H. Weil, and Robert J. Levering; and for the American Association of Attorney-Certified Public Accountants, Inc., by L. Harold Levinson, David Ostrove, and Sydney S. Traum. Kenneth R. Hart filed a brief for the Florida Institute of Certified Public Accountants as amicus curiae. Justice Kennedy delivered the opinion of the Court. In previous cases we have considered the constitutionality of state laws prohibiting lawyers from engaging in direct, personal solicitation of prospective clients. See Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978); In re Primus, 436 U. S. 412 (1978). In the case now before us, we consider a solicitation ban applicable to certified public accountants (CPA’s) enacted by the State of Florida. We hold that, as applied to CPA solicitation in the business context, Florida’s prohibition is inconsistent with the free speech guarantees of the First and Fourteenth Amendments. I Respondent Scott Fane is a CPA licensed to practice in the State of Florida by the Florida Board of Accountancy (Board). Before moving to Florida in 1985, Fane had his own accounting CPA practice in New Jersey, specializing in providing tax advice to small and medium-sized businesses. He often obtained business clients by making unsolicited telephone calls to their executives and arranging meetings to explain his services and expertise. This direct, personal, uninvited solicitation was permitted under New Jersey law. When he moved to Florida, Fane wished to build a practice similar to his solo practice in New Jersey but was unable to do so because the Board of Accountancy had a comprehensive rule prohibiting CPA’s from engaging in the direct, personal solicitation he had found most effective in the past. The Board's rules provide that a CPA “shall not by any direct, in-person, uninvited solicitation solicit an engagement to perform public accounting services... where the engagement would be for a person or entity not already a client of [the CPA], unless such person or entity has invited such a communication.” Fla. Admin. Code § 21A-24.002(2)(c) (1992). “[B]irect, in-person, uninvited solicitation” means “any communication which directly or implicitly requests an immediate oral response from the recipient,” which, under the Board’s rules, includes all “[u]ninvited in-person visits or conversations or telephone calls to a specific potential client.” §21A-24.002(3). The rule, according to Fane’s uncontradicted submissions, presented a serious obstacle, because most businesses are willing to rely for advice on the accountants or CPA’s already serving them. In Fane’s experience, persuading a business to sever its existing accounting relations or alter them to include a new CPA on particular assignments requires the new CPA to contact the business and explain the advantages of a change. This entails a detailed discussion of the client’s needs and the CPA’s expertise, services and fees. See Affidavit of Scott Fane ¶¶ 7, 11, App. 11, 15. Fane sued the Board in the United States District Court for the Northern District of Florida, seeking declaratory and injunctive relief on the ground that the Board’s anti-solicitation rule violated the First and Fourteenth Amendments. Fane alleged that but for the prohibition he would seek clients through personal solicitation and would offer fees below prevailing rates. Complaint ¶¶ 9 — 11, App. 3-4. In response to Fane’s submissions, the Board relied on the affidavit of Louis Dooner, one of its former chairmen. Dooner concluded that the solicitation ban was necessary to preserve the independence of CPA’s performing the attest function, which involves the rendering of opinions on a firm’s financial statements. His premise was that a CPA who solicits clients “is obviously in need of business and may be willing to bend the rules.” App. 23. In Dooner’s view, “[i]f [a CPA] has solicited the client he will be beholden to him.” Id., at 19. Dooner also suggested that the ban was needed to prevent “overreaching and vexatious conduct by the CPA.” Id., at 23. The District Court gave summary judgment to Fane and enjoined enforcement of the rule “as it is applied to CPA’s who seek clients through in-person, direct, uninvited solicitation in the business context.” Civ. Case No. 88-40264-MNP (ND Fla., Sept. 13, 1990), App. 88. A divided panel of the Court of Appeals for the Eleventh Circuit affirmed. 945 F. 2d 1514 (1991). We granted certiorari, 504 U. S. 940 (1992), and now affirm. II In soliciting potential clients, Fane seeks to communicate no more than truthful, nondeceptive information proposing a lawful commercial transaction. We need not parse Fane’s proposed communications to see if some parts are entitled to greater protection than the solicitation itself. This case comes to us testing the solicitation, nothing more. That is what the State prohibits and Fane proposes. Whatever ambiguities may exist at the margins of the category of commercial speech, see, e. g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 384-388 (1973), it is clear that this type of personal solicitation is commercial expression to which the protections of the First Amendment apply. E. g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 762 (1976). While we did uphold a ban on in-person solicitation by lawyers in Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), that opinion did not hold that all personal solicitation is without First Amendment protection. See id., at 457. There are, no doubt, detrimental aspects to personal commercial solicitation in certain circumstances, see id., at 464, and n. 23, but these detriments are not so inherent or ubiquitous that solicitation of this sort is removed from the ambit of First Amendment protection, cf. United States v. Kokinda, 497 U. S. 720, 725 (1990) (plurality opinion) (“Solicitation is a recognized form of speech protected by the First Amendment”); see also International Society for Krishna Consciousness v. Lee, 505 U. S. 672, 677 (1992). In the commercial context, solicitation may have considerable value. Unlike many other forms of commercial expression, solicitation allows direct and spontaneous communication between buyer and seller. A seller has a strong financial incentive to educate the market and stimulate demand for his product or service, so solicitation produces more personal interchange between buyer and seller than would occur if only buyers were permitted to initiate contact. Personal interchange enables a potential buyer to meet and evaluate the person offering the product or service and allows both parties to discuss and negotiate the desired form for the transaction or professional relation. Solicitation also enables the seller to direct his proposals toward those consumers who he has a reason to believe would be most interested in what he has to sell. For the buyer, it provides an opportunity to explore in detail the way in which a particular product or service compares to its alternatives in the market. In particular, with respect to nonstandard products like the professional services offered by CPA’s, these benefits are significant. In denying CPA’s and their clients these advantages, Florida’s law threatens societal interests in broad access to complete and accurate commercial information that First Amendment coverage of commercial speech is designed to safeguard. See Virginia State Bd. of Pharmacy, supra, at 762-765; Bates v. State Bar of Arizona, 433 U. S. 350, 377-378 (1977); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N Y, 447 U. S. 557, 561-562 (1980). The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment. See Virginia State Bd. of Pharmacy, supra, at 762. Commercial speech, however, is “linked inextricably” with the commercial arrangement that it proposes, Friedman v. Rogers, 440 U. S. 1, 10, n. 9 (1979), so the State’s interest in regulating the underlying transaction may give it a concomitant interest in the expression itself. See Ohralik, supra, at 457. For this reason, laws restricting commercial speech, unlike laws burdening other forms of protected expression, need only be tailored in a reasonable manner to serve a substantial state interest in order to survive First Amendment scrutiny. Board of Trustees of State University of N. Y. v. Fox, 492 U. S. 469, 480 (1989); Central Hudson Gas & Electric Corp., 447 U. S., at 564. Even under this intermediate standard of review, however, Florida’s blanket ban on direct, in-person, uninvited solicitation by CPA’s cannot be sustained as applied to Fane’s proposed speech. III To determine whether personal solicitation by CPA’s may be proscribed under the test set forth in Central Hudson we must ask whether the State’s interests in proscribing it are substantial, whether the challenged regulation advances these interests in a direct and material way, and whether the extent of the restriction on protected speech is in reasonable proportion to the interests served. See ibid. Though we conclude that the Board’s asserted interests are substantial, the Board has failed to demonstrate that its solicitation ban advances those interests. A In undertaking the first inquiry, we must identify with care the interests the State itself asserts. Unlike rational-basis review, the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions. See Fox, supra, at 480. Neither will we turn away if it appears that the stated interests are not the actual interests served by the restriction. See, e. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 730 (1982). To justify its ban on personal solicitation by CPA’s, the Board proffers two interests. First, the Board asserts an interest in protecting consumers from fraud or overreaching by CPA’s. Second, the Board claims that its ban is necessary to maintain both the fact and appearance of CPA independence in auditing a business and attesting to its financial statements. The State’s first interest encompasses two distinct purposes: to prevent fraud and other forms of deception, and to protect privacy. As to the first purpose, we have said that “[t]he First Amendment... does not prohibit the State from insuring that the stream of commercial information flow[s] cleanly as well as freely,” Virginia State Bd. of Pharmacy, 425 U. S., at 771-772, and our cases make clear that the State may ban commercial expression that is fraudulent or deceptive without further justification, see, e. g., Central Hudson Gas & Electric Corp., supra, at 563-564; In re R. M. J, 455 U. S. 191, 203 (1982); Metromedia, Inc. v. San Diego, 453 U. S. 490, 507 (1981) (plurality opinion). Indeed, 25 States and the District of Columbia take various forms of this approach, forbidding solicitation by CPA’s only under circumstances that would render it fraudulent, deceptive, or coercive. See, e.g., Code of Colo. Regs. §7.12 (1991); N. D. Admin. Code § 3-04-06-02 (1991); N. H. Code Admin. Rules § 507.02(c) (1990); D. C. Mun. Reg., Tit. 17, §2513.4 (1990). But where, as with the blanket ban involved here, truthful and nonmisleading expression will be snared along with fraudulent or deceptive commercial speech, the State must satisfy the remainder of the Central Hudson test by demonstrating that its restriction serves a substantial state interest and is designed in a reasonable way to accomplish that end. See In re R. M. J, supra, at 203. For purposes of that test, there is no question that Florida’s interest in ensuring the accuracy of commercial information in the marketplace is substantial. See, e. g., Virginia State Bd. of Pharmacy, supra, at 771-772; San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 539 (1987); Friedman v. Rogers, supra, at 13. Likewise, the protection of potential clients’ privacy is a substantial state interest. Even solicitation that is neither fraudulent nor deceptive may be pressed with such frequency or vehemence as to intimidate, vex, or harass the recipient. In Ohralik, we made explicit that “protection of the public from these aspects of solicitation is a legitimate and important state interest.” 436 U. S., at 462. The Board’s second justification for its ban — the need to maintain the fact and appearance of CPA independence and to guard against conflicts of interest — is related to the audit and attest functions of a CPA. In the course of rendering these professional services, a CPA reviews financial statements and attests that they have been prepared in accordance with generally accepted accounting principles and present a fair and accurate picture of the firm’s financial condition. See generally R. Gormley, Law of Accountants and Auditors ¶ 1.07[4] (1981); 1 American Institute of Certified Public Accountants, Professional Standards AU §110.01 (1991) (hereinafter AICPA Professional Standards). In the Board’s view, solicitation compromises the independence necessary to perform the audit and attest functions, because a CPA who needs business enough to solicit clients will be prone to ethical lapses. The Board claims that even if actual misconduct does not occur, the public perception of CPA independence will be undermined if CPA’s behave like ordinary commercial actors. We have given consistent recognition to the State’s important interests in maintaining standards of ethical conduct in the licensed professions. See, e. g., Ohralik, supra, at 460; Virginia State Bd. of Pharmacy, supra, at 766; National Soc. of Professional Engineers v. United States, 436 U. S. 679, 696 (1978). With regard to CPA’s, we have observed that they must “maintain total independence” and act with “complete fidelity to the public trust” when serving as independent auditors. United States v. Arthur Young & Co., 465 U. S. 806, 818 (1984). Although the State’s interest in obscuring the commercial nature of public accounting practice is open to doubt, see Bates v. Arizona State Bar Assn., 433 U. S., at 369-371, the Board’s asserted interest in maintaining CPA independence and ensuring against conflicts of interest is not. We acknowledge that this interest is substantial. See Ohralik, supra, at 460-461. B That the Board’s asserted interests are substantial in the abstract does not mean, however, that its blanket prohibition on solicitation serves them. The penultimate prong of the Central Hudson test requires that a regulation impinging upon commercial expression “directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose.” Central Hudson Gas & Electric Corp., 447 U. S., at 564. We agree with the Court of Appeals that the Board’s ban on CPA solicitation as applied to the solicitation of business clients fails to satisfy this requirement. It is well established that “[t]he party seeking to uphold a restriction on commercial speech carries the burden of justifying it.” Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 71, n. 20 (1983); Fox, 492 U. S., at 480. This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. See, e. g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 648-649 (1985); Bolger, supra, at 73; In re R. M. J, 455 U. S., at 205-206; Central Hudson Gas & Electric Corp., supra, at 569; Friedman v. Rogers, 440 U. S., at 13-15; Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 95 (1977). Without this requirement, a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression. The Board has not demonstrated that, as applied in the business context, the ban on CPA solicitation advances its asserted interests in any direct and material way. It presents no studies that suggest personal solicitation of prospective business clients by CPA’s creates the dangers of fraud, overreaching, or compromised independence that the Board claims to fear. The record does not disclose any anecdotal evidence, either from Florida or another State, that validates the Board’s suppositions. This is so even though 21 States place no specific restrictions of any kind on solicitation by CPA’s, and only 3 States besides Florida have enacted a categorical ban. See 3 La. Admin. Code 46:XIX.507(D)(1)(c) (Supp. 1988); Minn. Admin. Code § 1100.6100 (1991); 22 Tex. Admin. Code §501.44 (Supp. 1992). Not even Fane’s own conduct suggests that the Board’s concerns are justified. Cf. Ohralik, supra, at 467-468. The only suggestion that a ban on solicitation might help prevent fraud and overreaching or preserve CPA independence is the affidavit of Louis Dooner, which contains nothing more than a series of conclusory statements that add little if anything to the Board’s original statement of its justifications. The Board directs the Court’s attention to a report on CPA solicitation prepared by the American Institute of Certified Public Accountants in 1981. See AICPA, Report of the Special Committee on Solicitation (1981), App. 29. The Report contradicts, rather than strengthens, the Board’s submissions. The AICPA Committee stated that it was “unaware of the existence of any empirical data supporting the theories that CPAs (a) are not independent of clients obtained by direct uninvited solicitation, or (b) do not maintain their independence in mental attitude toward those clients subjected to direct uninvited solicitation by another CPA.” Id., at 4, App. 38. Louis Dooner’s suggestion that solicitation of new accounts signals the need for work and invites an improper approach from the client ignores the fact that most CPA firms desire new clients. The AICPA Report discloses no reason to suspect that CPA’s who engage in personal solicitation are more desperate for work, or would be any more inclined to compromise their professional standards, than CPA’s who do not solicit, or who solicit only by mail or advertisement. With respect to the prospect of harassment or overreaching by CPA’s, the report again acknowledges an “absence of persuasive evidence that direct uninvited solicitation by CPAs is likely to lead to false or misleading claims or oppressive conduct.” Id., at 2, App. 35. Other evidence concerning personal solicitation by CPA’s also belies the Board’s concerns. In contrast to the Board’s anxiety over uninvited solicitation, the literature on the accounting profession suggests that the main dangers of compromised independence occur when a CPA firm is too dependent upon, or involved with, a longstanding client. See, e. g., P. Cottell & T. Perlin, Accounting Ethics 39-40 (1990); G. Previts, The Scope of CPA Services: A Study of the Development of the Concept of Independence and the Profession’s Role in Society 142 (1985); S. Rep. No. 95-34, pp. 50-52 (1977); General Accounting Office, CPA Audit Quality: Status of Actions Taken to Improve Auditing and Financial Reporting of Public Companies 36 (Mar. 1989) (GAO/AFMD-89-38). It appears from the literature that a business executive who wishes to obtain a favorable but unjustified audit opinion from a CPA would be less likely to turn to a stranger who has solicited him than to pressure his existing CPA, with whom he has an ongoing, personal relation and over whom he may also have some financial leverage. See id., at 34 (“A company using the threat of changing accountants — opinion shopping — to pressure its existing accounting firm to accept a less than desirable accounting treatment is one way independence is threatened”); Cottell & Perlin, supra, at 34 (noting that independence can be eroded if a client is served by a single auditor for a great length of time). For similar reasons, we reject the Board’s alternative argument that the solicitation ban is a reasonable restriction on the manner in which CPA’s may communicate with prospective clients, rather than a direct regulation of the commercial speech itself. Assuming that a flat ban on commercial solicitation could be regarded as a content-neutral time, place, or manner restriction on speech, a proposition that is open to serious doubt, see, e. g., Virginia State Bd. of Pharmacy, 425 U. S., at 771, a challenged restriction of that type still must serve a substantial state interest in “a direct and effective way,” Ward v. Rock Against Racism, 491 U. S. 781, 800 (1989). The State has identified certain interests in regulating solicitation in the accounting profession that are important and within its legitimate power, but the prohibitions here do not serve these purposes in a direct and material manner. Where a restriction on speech lacks this close and substantial relation to the governmental interests asserted, it cannot be, by definition, a reasonable time, place, or manner restriction. C Relying on Ohralik, the Board seeks to justify its solicitation ban as a prophylactic rule. It acknowledges that Fane’s solicitations may not involve any misconduct but argues that all personal solicitation by CPA’s must be banned, because this contact most often occurs in private offices and is difficult to regulate or monitor. We reject the Board’s argument and hold that, as applied in this context, the solicitation ban cannot be justified as a prophylactic rule. Ohralik does not stand for the proposition that blanket bans on personal solicitation by all types of professionals are constitutional in all circumstances. Because “the distinctions, historical and functional, between professions, may require consideration of quite different factors,” Virginia State Bd. of Pharmacy, supra, at 773, n. 25, the constitutionality of a ban on personal solicitation will depend upon the identity of the parties and the precise circumstances of the solicitation. Later cases have made this clear, explaining that Ohralik’s holding was narrow and depended upon certain “unique features of in-person solicitation by lawyers” that were present in the circumstances of that case. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S., at 641; see also Shapero v. Kentucky Bar Assn., 486 U. S. 466, 472 (1988). Ohralik was a challenge to the application of Ohio’s ban on attorney solicitation and held only that a State Bar “constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.” Ohralik, 436 U. S., at 449. While Ohralik discusses the generic hazards of personal solicitation, see id., at 464-466, the opinion made clear that a preventative rule was justified only in situations “inherently conducive to overreaching and other forms of misconduct.” Id., at 464; cf. In re R. M. J, 455 U. S., at 203 (advertising may be banned outright only if it is actually or inherently misleading). The Court in Ohralik explained why the case before it met this standard: “[T]he potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter’s qualifications or the individual’s actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual’s privacy, even when no other harm materializes. Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited.” 436 U.. S., at 465-466 (footnotes omitted). The solicitation here poses none of the same dangers. Unlike a lawyer, a CPA is not “a professional trained in the art of persuasion.” A CPA’s training emphasizes independence and objectivity, not advocacy. See 1 AICPA Professional Standards AU §220; 2 id., ET §55; H. Magill & G. Previts, CPA Professional Responsibilities: An Introduction 105-108 (1991). The typical client of a CPA is far less susceptible to manipulation than the young accident victim in Ohralik. Fane’s prospective clients are sophisticated and experienced business executives who understand well the services that a CPA offers, See Affidavit of Scott Fane ¶¶ 5-7,10(A), App. 10-11,13. In general, the prospective client has an existing professional relation with an accountant and so has an independent basis for evaluating the claims of a new CPA seeking professional work. Id., ¶ 6, App. 10-11. The manner in which a CPA like Fane solicits business is conducive to rational and considered decisionmaking by the prospective client, in sharp contrast to the “uninformed acquiescence” to which the accident victims in Ohralik were prone. Ohralik, supra, at 465. While the clients in Ohralik were approached at a moment of high stress and vulnerability, the clients Fane wishes to solicit meet him in their own offices at a time of their choosing. If they are unreeeptive to his initial telephone solicitation, they need only terminate the call. Invasion of privacy is not a significant concern. If a prospective client does decide to meet with Fane, there is no expectation or pressure to retain Fane on the spot; instead, he or she most often exercises caution, checking references and deliberating before deciding to hire a new CPA. See Affidavit of Scott Fane ¶ 10(C), App. 13-14. Because a CPA has access to a business firm’s most sensitive financial records and internal documents, retaining a new accountant is not a casual decision. Ibid. The engagements Fane seeks are also long term in nature; to the extent he engages in unpleasant, high pressure sales tactics, he can impair rather than improve his chances of obtaining an engagement or establishing a satisfactory professional relation. The importance of repeat business and referrals gives the CPA a strong incentive to act in a responsible and decorous manner when soliciting business. In contrast with Ohralik, it cannot be said that under these circumstances, personal solicitation by CPA’s “more often than not will be injurious to the person solicited.” Ohralik, 436 U. S., at 466. The Board’s reliance on Ohralik is misplaced for yet another reason: The Board misunderstands what Ohmlik meant when it approved the use of a prophylactic rule. Id., at 464. The ban on attorney solicitation in Ohralik was prophylactic in the sense that it prohibited conduct conducive to fraud or overreaching at the outset, rather than punishing the misconduct after it occurred. But Ohmlik in no way relieves the State of the obligation to demonstrate that it is regulating speech in order to address what is in fact a serious problem and that the preventative measure it proposes will contribute in a material way to solving that problem. See ibid, (describing the State’s fear of harm from attorney solicitation as “well founded”). Were we to read Ohralik in the manner the Board proposes, the protection afforded commercial speech would be reduced almost to nothing; comprehensive bans on certain categories of commercial speech would be permitted as a matter of course. That would be inconsistent with the results reached in a number of our prior cases. See, e. g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Bates v. State Bar of Arizona, 433 U. S. 350 (1977); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977). It would also be inconsistent with this Court’s general approach to the use of preventative rules in the First Amendment	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
PIERCE, SECRETARY OF HOUSING AND URBAN DEVELOPMENT v. UNDERWOOD et al. No. 86-1512. Argued December 1, 1987 Decided June 27, 1988 Scalia, J., delivered the opinion of the Court, in Part I of which all participating Members joined, in Parts II and IV of which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined, in Part III of which Rehnquist, C. J., and White, Stevens, and O’Connor, JJ., joined, and in Part V of which Rehnquist, C. J., and Stevens, J., joined, and White and O’Connor, JJ., joined except as to the last three lines. Brennan, J., filed an opinion concurring in part and concurring in the judgment, in which Marshall and Blackmun, JJ., joined, post, p. 574. White, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 583. Kennedy, J., took no part in the consideration or decision of the case. Deputy Solicitor General Merrill argued the cause for petitioner. On the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Charles A. Rothfeld, William Ranter, John S. Koppel, and Gershon M. Ratner. Mary S. Burdick argued the cause for respondents. With her on the brief was Richard A. Rothschild. Briefs of amici curiae urging affirmance were filed for Battles Farm Co. et al. by Gerald Goldman and Thomas D. Goldberg; for the National Organization of Social Security Claimants’ Representatives by Robert E. Rains and Nancy G. Shor; for the San Francisco Lawyers’ Committee for Urban Affairs et al. by Marilyn Kaplan; for the Small Business Foundation of America, Inc., et al. by David Overlock Stewart; and for Vernice Dubose et al. by Dennis J. O’Brien and William H. Clendenen, Jr. Justice Scalia delivered the opinion of the Court. Respondents settled their lawsuit against one of petitioner’s predecessors as Secretary of Housing and Urban Development, and were awarded attorney’s fees after the court found that the position taken by the Secretary was not “substantially justified” within the meaning of the Equal Access to Justice Act (EAJA), 28 U. S. C. § 2412(d). The court also determined that “special factors” justified calculating the attorney’s fees at a rate in excess of the $75-per-hour cap imposed by the statute. We granted certiorari, 481 U. S. 1047 (1987), to resolve a conflict in the Courts of Appeals over important questions concerning the interpretation of the EAJA. Compare Dubose v. Pierce, 761 F. 2d 913 (CA2 1985), cert. pending, No. 85-516, with 761 F. 2d 1342 (CA9 1985) (per curiam), as amended, 802 F. 2d 1107 (1986) (case below). I This dispute arose out of a decision by one of petitioner’s predecessors as Secretary not to implement an “operating subsidy” program authorized by § 236 as amended by § 212 of the Housing and Community Development Act of 1974, Pub. L. 93-383, 88 Stat. 633, formerly codified at 12 U. S. C. §§ 1715z — 1(f)(3) and (g) (1970 ed., Supp. IV). The program provided payments to owners of Government-subsidized apartment buildings to offset rising utility expenses and property taxes. Various plaintiffs ■ successfully challenged the Secretary’s decision in lawsuits filed in nine Federal District Courts. See Underwood v. Pierce, 547 F. Supp. 256, 257, n. 1 (CD Cal. 1982) (citing cases). While the Secretary was appealing these adverse decisions, respondents, members of a nationwide class of tenants residing in Government-subsidized housing, brought the present action challenging the Secretary’s decision in the United States District Court for the District of Columbia. That court also decided the issue against the Secretary, granted summary judgment in favor of respondents, and entered a permanent injunction and writ of mandamus requiring the Secretary to disburse the accumulated operating-subsidy fund. See Underwood v. Hills, 414 F. Supp. 526, 532 (1976). We stayed the District Court’s judgment pending appeal. Sub nom. Hills v. Cooperative Services, Inc., 429 U. S. 892 (1976). The Court of Appeals for the Second Circuit similarly stayed, pending appeal, one of the eight other District Court judgments against the Secretary. See Dubose v. Harris, 82 F. R. D. 582, 584 (Conn. 1979). Two of those other judgments were affirmed by Courts of Appeals, see Ross v. Community Services, Inc., 544 F. 2d 514 (CA4 1976), and Abrams v. Hills, 547 F. 2d 1062 (CA9 1976), vacated sub nom. Pierce v. Ross, 455 U. S. 1010 (1982), and we consolidated the cases and granted the Secretary’s petitions for writs of certiorari to review those decisions, Harris v. Ross, 431 U. S. 928 (1977). Before any other Court of Appeals reached a decision on the issue, find before we could review the merits, a newly appointed Secretary settled with the plaintiffs in most of the cases. The Secretary agreed to pay into a settlement fund $60 million for distribution to owners of subsidized housing or to tenants whose rents had been increased because subsidies had not been paid. The present case was then transferred to the Central District of California for administration of the settlement. In 1980, while the settlement was being administered, Congress passed the EAJA, 28 U. S. C. § 2412(d), which as relevant provides: “(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses..., incurred by that party in any civil action... brought by or against the United States..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. “(2) For the purposes of this subsection— “(A) ‘fees and other expense’ includes... reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that... (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.).” The District Court granted respondents’ motion for an award of attorney’s fees under this statute, concluding that the Secretary’s decision not to implement the operating-subsidy program had not been “substantially justified.” The court determined that respondents’ attorneys had provided 3,304 hours of service and that “special factors” justified applying hourly rates ranging from $80 for work performed in 1976 to $120 for work performed in 1982. This produced a base or “lodestar” figure of $322,700 which the court multiplied by three-and-one-half (again because of the “special factors”), resulting in a total award of $1,129,450. On appeal, the Court of Appeals for the Ninth Circuit held that the District Court had not abused its discretion in concluding that the Secretary’s position was not substantially justified. 761 F. 2d, at 1346. The Court of Appeals also held that the special factors relied on by the District Court justified increasing the hourly rates of the attorneys, but did not justify applying a multiplier to the lodestar amount. It therefore reduced the award to $322,700. Id., at 1347-1348; see 802 F. 2d, at 1107. We granted the Secretary’s petition for certiorari on the questions whether the Government’s position was “substantially justified” and whether the courts below properly identified “special factors” justifying an award in excess of the statute’s $75-per-hour cap on attorney’s fees. II We first consider whether the Court of Appeals applied the correct standard when reviewing the District Court’s determination that the Secretary’s position was not substantially justified. For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for “abuse of discretion”). The Ninth Circuit treated the issue of substantial justification as involving the last of these; other Courts of Appeals have treated it as involving the first. See Battles Farm Co. v. Pierce, 257 U. S. App. D. C. 6, 11-12, 806 F. 2d 1098, 1103-1104 (1986), cert. pending, No. 86 — 1661; Dubose v. Pierce, 761 F. 2d, at 917. For some few trial court determinations, the question of what is the standard of appellate review is answered by relatively explicit statutory command. See, e. g., 42 U. S. C. § 1988 (“[T]he court, in its discretion, may allow the prevailing party... a reasonable attorney’s fee”).. For most others, the answer is provided by a long history of appellate practice. But when, as here, the trial court determination is one for which neither a clear statutory prescription nor a historical tradition exists, it is uncommonly difficult to derive from the pattern of appellate review of other questions an analytical framework that will yield the correct answer. See Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 638 (1D71) (hereinafter Rosenberg). No more today than in the past shall we attempt to discern or to create a comprehensive test; but we are persuaded that significant relevant factors call for an “abuse of discretion” standard in the present case. We turn first to the language and structure of the governing statute. It provides that attorney’s fees shall be awarded “unless the court finds that the position of the United States was substantially justified.” 28 U. S. C. § 2412(d)(1)(A) (emphasis added). This formulation, as opposed to simply “unless the position of the United States was substantially justified,” emphasizes the fact that the determination is for the district court to make, and thus suggests some deference to the district court upon appeal. That inference is not compelled, but certainly available. Moreover, a related provision of the EAJA requires an administrative agency to award attorney’s fees to a litigant prevailing in an agency adjudication if the Government’s position is not “substantially justified,” 5 U. S. C. § 504(a)(1), and specifies that the agency’s decision may be reversed only if a reviewing court “finds that the failure to make an award... was unsupported by substantial evidence.”- § 504(c)(2). We doubt that it was the intent of this interlocking scheme that a court of appeals would accord more deference to an agency’s determination that its own position was substantially justified than to such a determination by a federal district court. Again, however, the inference of deference is assuredly not compelled. We recently observed, with regard to the problem of determining whether mixed questions of law and fact are to be treated as questions of law or of fact for purposes of appellate review, that sometimes the decision “has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” Miller v. Fenton, 474 U. S. 104, 114 (1985). We think that consideration relevant in the present context as well, and it argues in favor of deferential, abuse-of-discretion review. To begin with, some of the elements that bear upon whether the Government’s position “ivas substantially justified” may be known only to the district court. Not infrequently, the question will turn upon not merely what was the law, but what was the evidence regarding the facts. By reason of settlement conferences and other pretrial activities, the district court may have insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon, or whether critical facts could easily have been verified by the Government. Moreover, even where the district judge’s full' knowledge of the factual setting can be acquired by the appellate court, that acquisition will often come at unusual expense, requiring the court to undertake the unaccustomed task of reviewing the entire record, not just to determine whether there existed the usual minimum support for the merits determination made by the factfinder below, but to determine whether urging of the opposite merits determination was substantially justified. In some cases, such as the present one, the attorney’s fee determination will involve a judgment ultimately based upon evaluation of the purely legal issue governing the litigation. It cannot be assumed, however, that de novo review of this will not require the appellate court to invest substantial additional time, since it will in any case have to grapple with the same legal issue on the merits. To the contrary, one would expect that where the Government’s case is so feeble as to provide grounds for an EAJA award, there will often be (as there was here) a settlement below, or a failure to appeal from the adverse judgment. Moreover, even if there is a merits appeal, and even if it occurs simultaneously with (or goes to the same panel that entertains) the appeal from the attorney’s fee award, the latter legal question will not be precisely the same as the merits: not what the law now is, but what the Government was substantially justified in believing it to have been. In all the separate-from-the-merits EAJA appeals, the investment of appellate energy will either fail to produce the normal law-clarifying benefits that come from an appellate decision on a question of law, or else will strangely distort the appellate process. The former result will obtain when (because of intervening legal decisions by this Court or by the relevant circuit itself) the law of the circuit is, at the time of the EAJA appeal, quite clear, so that the question of what the Government was substantially justified in believing it to have been is of entirely historical interest. Where, on the other hand, the law of the circuit remains unsettled at the time of the EAJA appeal, a ruling that the Government was not substantially justified in believing it to be thus-and-so would (unless there is some reason to think it has changed since) effectively establish the circuit law in a most peculiar, secondhanded fashion. Moreover, the possibility of the latter occurrence would encourage needless merits appeals by the Government, since it would know that if it does not appeal, but the victorious plaintiff appeals the denial of attorney’s fees, its district-court loss on the merits can be converted into a circuit-court loss on the merits, without the opportunity for a circuit-court victory on the merits. All these untoward consequences can be substantially reduced or éntirely avoided by adopting an abuse-of-discretion standard of review. Another factor that we find significant has been described as follows by Professor Rosenberg: “One of the ‘good’ reasons for conferring discretion on the trial judge is the sheer impracticability of formulating a rule of decision for the matter in issue. Many questions that arise in litigation are not amenable to regulation by rule because they involve multifarious, fleeting, special, narrow facts that utterly resist generalization — at least, for the time being. “The non-amenability of the problem to rule, because of the diffuseness of circumstances, novelty, vagueness, or similar reasons that argue for allowing experience to develop, appeal's to be a sound reason for Conferring discretion on the magistrate.... A useful analogue is the course of development under Rule 39(b) of the Federal Rules of Civil Procedure, providing that in spite of a litigant’s tardiness (under Rule 38 which specifies a ten-day-from-last-pleading deadline) the trial court ‘in its discretion’ may order a trial by jury of any or all issues. Over the years, appellate courts have consistently upheld the trial judges in allowing or refusing late-demanded jury-trials, but in doing so have laid down two guidelines for exercise of the discretionary power. The products of cumulative experience, these guidelines relate to the justifiability of the tardy litigant’s delay and the absence of prejudice to his adversary. Time and experience have allowed the formless problem to take shape, and the contours of a guiding principle to emerge.” Rosenberg 662-663. We think that the question whether the Government’s litigating position has been “substantially justified” is precisely such a multifarious and novel question, little susceptible, for the time being at least, of useful generalization, and likely to profit from the experience that an abuse-of-discretion rule will permit to develop. There applies here what we said in connection with our review of Rule 54(b) discretionary certification by district courts: “because the number of possible situations is large, we are reluctant either to fix or sanction narrow guidelines for the district courts to follow.” Curtiss-Wright Corp. v. General Electric Co., 446 U. S. 1, 10-11 (1980). Application of an abuse-of-discretion standard to the present question will permit that needed flexibility. It must be acknowledged that militating against the use of that standard in the present case is the substantial amount of the liability produced by the District Judge’s decision. If this were the sort of decision that ordinarily has such substantial consequences, one might expect it to be reviewed more intensively. In that regard, however, the present case is not characteristic of EAJA attorney’s fee cases. The median award has been less than $3,000. See Annual Report of the Director of the Administrative Office of the U. S. Courts, Fees and Expenses Awarded Under the Equal Access to Justice Act, pp. 99-100, Table 29 (1987) (351 of 387 EAJA awards in fiscal year 1986-1987’ were against the Department of Health and Human Services and averaged $2,379). We think the generality rather than the exception must form the basis for our rule. In sum, although- as we acknowledged at the outset our resolution of this issue is not rigorously scientific, we are satisfied that the text of the statute permits, and sound judicial administration counsels, deferential review of a district court’s decision regarding attorney’s fees under the EAJA. In addition to furthering the goals we have described, it will implement our view that a “request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983). Ill Before proceeding to consider whether the trial court abused its discretion in this case, we have one more abstract legal issue to resolve: the meaning of the phrase “substantially justified” in 28 U. S. C. § 2412(d)(1)(A). The Court of Appeals, following Ninth Circuit precedent, held that the Government’s position was “substantially justified” if it “had a reasonable basis both in law and in fact.” 761 F. 2d, at 1346. The source of that formulation is a Committee Report prepared at the time of the original enactment of the EAJA, which commented that “[t]he test of whether the Government position is substantially justified is essentially one of reasonableness inlaw and fact.” H. R. Conf. Rep. No. 96-1434, p. 22 (1980). In this petition, the Government urges us to hold that “substantially justified” means that its litigating position must have had “some substance and a fair possibility of success.” Brief for Petitioner 16. Respondents, on the other hand, contend that the phrase imports something more than “a simple reasonableness standard,” Brief for Respondents 24 — though they are somewhat vague as to precisely ivhat more, other than “a high standard,” and “a strong showing,” id., at 28. In addressing this issue, we make clear at the outset that we do not think it appropriate to substitute for the formula that Congress has adopted any judicially crafted revision of it — whether that be. “reasonable basis in both law and fact” or anything else. “Substantially justified” is the test the statute prescribes, and the issue should be framed in those terms. That being said, there is nevertheless an'obvious need to elaborate upon the meaning of the phrase. The broad range of interpretations described above is attributable to the fact that the word “substantial” can have two quite different — indeed, almost contrary — connotations. On the one hand, it can mean “[cjonsiderable.in amount, value, or the like; large,” Webster’s New International Dictionary 2514 (2d ed. 1945) — as, for example, in the statement, “He won the election by a substantial majority.” On the other' hand, it can mean “[t]hat is such in substance or in the main,” ibid, —as, for example, in the statement, “What he said was substantially true.” Depending upon which connotation one selects, “substantially justified” is susceptible of interpretations ranging from the Government’s to the respondents’. We are not, however, dealing with a field of law that provides no guidance in this matter. Judicial review of agency action, the field at issue here, regularly proceeds under the rubric of “substantial evidence” set forth in the Administrative Procedure Act, 5 U. S. C. § 706(2)(E). That phrase does not mean a large or considerable amount of evidence, but rather “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938). In an area related to the present case in another way, the test for avoiding the imposition of attorney’s fees for resisting discovery in district court is whether the resistance was “substantially justified,” Fed. Rules Civ. Proc. 37(a)(4) and (b)(2)(E). To our knowledge, that has never been described as meaning “justified to a high degree,” but rather has been said to be satisfied if there is a “genuine dispute,” Advisory Committee’s Notes on 1970 Amendments to Fed. Rule Civ. Proc. 37(a)(4), 28 U. S. C. App., p. 601; see, e. g., Quaker Chair Corp. v. Litton Business Systems, Inc., 71 F. R. D. 527, 535 (SDNY 1976), or “if reasonable people could differ as to [the appropriateness-of the contested action],” Reygo Pacific Corp. v. Johnston Pump Co., 680 F. 2d 647, 649 (CA9 1982); see 8 C. Wright & A. Miller,- Federal Practice and Procedure §2288, p. 790 (1970); SEC v. Musella, [1984] CCH Fed. Sec. L. Rep, ¶ 91,647, p. 99,282 (SDNY 1984); Smith v. Montgomery County, 573 F. Supp. 604, 614 (Md. 1983). We are of the view, therefore, that as between the two commonly used connotations-of the word “substantially,” the one most naturally conveyed by -the phrase before us here is not “justified to a high degree,” but rather “justified in substance or in the main” — that is, justified to a degree that could- satisfy a reasonable person. That is no different from the “reasonable basis both in law and fact” formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have, addressed this issue.. See United States v. Yoffe, 775 F. 2d 447, 449-450 (CA1 1985); Dubose v. Pierce, 761 F. 2d, at 917-918; Citizens Council of Delaware County v. Brinegar, 741 F. 2d 584, 593 (CA3 1984); Anderson v. Heckler, 756 F. 2d 1011, 1013 (CA4 1985); Hanover Building Materials, Inc. v. Guiffrida, 748 F. 2d 1011, 1015 (CA5 1984); Trident Marine Construction, Inc. v. Dis trict Engineer, 766 F. 2d 974, 980 (CA6 1985); Ramos v. Haig, 716 F. 2d 471, 473 (CA7 1983); Foster v. Tourtellotte, 704 F. 2d 1109, 1112 (CA9 1983) (per curiam); United States v. 2,116 Boxes of Boned Beef, 726 F. 2d 1481, 1486-1487 (CA10), cert. denied sub nom. Jarboe-Lackey Feedlots, Inc. v. United States, 469 U. S. 825 (1984); Ashburn v. United States, 740 F. 2d 843, 850 (CA11 1984). To be “substantially justified” means, of course, more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve. Respondents press upon us an excerpt from the House Committee Report pertaining to the 1985 reenactment of the EAJA, which read as follows: “Several courts have held correctly that ‘substantial justification’ means more than merely reasonable. Because in 1980 Congress rejected a standard of ‘reasonably justified’ in favor of ‘substantially justified,’ the test must be more than mere reasonableness.” H. R. Rep. No. 99-120, p. 9 (1985) (footnote omitted). If this language is to be controlling upon us, it must be either (1) an authoritative interpretation of what the 1980 statute meant, or (2) an authoritative expression of what the 1985 Congress intended. It cannot, of course, be the former, since it is the function of‘the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means. Nor can it reasonably be thought to be the latter — because it is not an explanation of any language that the 1985 Committee drafted, because on its face it accepts the 1980 meaning of the terms as subsisting, and because there is no indication whatever in the text or even the legislative history of the 1985 reenactment that Congress thought it was doing anything insofar as the present issue is concerned except reenacting and making permanent the 1980 legislation. (Quite obviously, reenacting precisely the same language would be a strange way to make a change.) This is not, it should be noted, a situation in which Congress reenacted a statute that had in fact been given a consistent judicial interpretation along the lines that the quoted Committee Report suggested. Such a reenactment, of course, generally includes the settled judicial interpretation. Lorillard v. Pons, 484 U. S. 575, 580-581 (1978). Here, to the contrary, the almost uniform appellate interpretation (12 Circuits out of 13) contradicted the interpretation endorsed in the Committee Report. See supra, at 565-566 (citing cases); see also Foley Constriction Co. v. United States Army Corps of Engineers, 716 F. 2d 1202, 1204 (CA8 1983), cert. denied, 466 U. S. 936 (1984); Broad Avenue Laundry and Tailoring v. United States, 693 F. 2d 1387, 1391 (CA Fed. 1982). Only the District of Columbia Circuit had adopted the position that the Government had to show something “slightly more” than reasonableness. Spencer v. NLRB, 229 U. S. App. D. C. 225, 244, 712 F. 2d 539, 558 (1983), cert. denied, 466 U. S. 936 (1984). We might add that in addition to being out of accord with the vast body of existing appellate precedent, the 1985 House Report also contradicted, without explanation, the 1980 House Report (“reasonableness in law and fact”) from which, as we have noted, the Ninth Circuit drew its formulation in the present case. Even in the ordinary situation, the 1985 House Report would not suffice to fix the meaning of language which that reporting Committee did not even draft. Much less are we willing to accord it such force in the present case, since only the clearest indication of congressional command would persuade us to adopt a test so out of accord with prior usage, and so unadministerable, as “more than mere reasonableness.” Between the test of reasonableness, and a test such as “clearly and convincingly justified” — which no one, not even respondents, suggests is applicable — there is simply no accepted stopping-place, no ledge that can hold the anchor for steady and consistent judicial behavior. IV We reach, at last, the merits of whether the District Court abused its discretion in finding that the Government’s position was not “substantially justified.” Both parties argue that for purposes of this inquiry courts should rely on “objective indicia” such as the terms of a settlement agreement, the stage in the proceedings at which the merits were decided, and the views of other courts on the merits. This, they suggest, can avoid the time-consuming and possibly inexact process of assessing the strength of the Government’s position. While we do not disagree that objective indicia can be relevant, we do not think they provide a conclusive answer, in either direction, for the present case. Respondents contend that the lack of substantial justification for the Government’s position was demonstrated by its willingness to settle the litigation on unfavorable terms. Other factors, however, might explain the settlement equally well — for example, a change in substantive policy instituted by a new administration. The unfavorable terms of a settlement agreement, without inquiry into the reasons for settlement, cannot conclusively establish the weakness of the Government	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 63 ]	sc_adminaction
NELSON et al. v. COUNTY OF LOS ANGELES et al. No. 152. Argued January 13, 1960. Decided February 29, 1960. A. L. Wirin and Fred Okrand argued the cause for petitioners. With them on the brief was Nanette Dembitz. Wm. E. Lamoreaux argued the cause for respondents. With him on the brief was Harold W. Kennedy. Murray A. Gordon filed a brief for the National Association of Social Workers, as amicus curiae, urging reversal. Mr. Justice Clark delivered the opinion of the Court. Petitioners, when employees of the County of Los Angeles, California, were subpoenaed by and appeared before a Subcommittee of the House Un-American Activities Committee, but refused to answer certain questions concerning subversion. Previously, each petitioner had been ordered by the County Board of Supervisors to answer any questions asked by the Subcommittee relating to his subversive activity, and § 1028.1 of the Government Code of the State of California made it the duty of any public employee to give testimony relating to such activity on pain of discharge “in the manner provided by law.” Thereafter the County discharged petitioners on the ground of insubordination and violation of § 1028.1 of the Code. Nelson, a permanent social worker employed by the County’s Department of Charities, was, upon his request, given a Civil Service Commission hearing which resulted in a confirmation of his discharge. Globe was a temporary employee of the same department and was denied a hearing on his discharge on the ground that, as such, he was not entitled to a hearing under the Civil Service Rules adopted pursuant to the County Charter. Petitioners then filed these petitions for mandates seeking reinstatement, contending that the California statute and their discharges violated the Due Process Clause of the Fourteenth Amendment. Nelson’s discharge was affirmed by the District Court of Appeal, 163 Cal. App. 2d 607, 329 P. 2d 978, and Globe’s summary dismissal was likewise affirmed, 163 Cal. App. 2d 595, 329 P. 2d 971. A petition for review in each of the cases was denied without opinion by the Supreme Court of California, three judges dissenting. 163 Cal. App. 2d 614, 329 P. 2d 983; 163 Cal. App. 2d 606, 329 P. 2d 978. We granted certiorari. 360 U. S. 928. The judgment in Nelson’s case is affirmed by an equally divided Court and will not be discussed. We conclude that Globe’s dismissal was valid. On April 6, 1956, Globe was served with a subpoena to appear before the Subcommittee at Los Angeles. On the same date, he was served with a copy of an order of the County Board of Supervisors, originally issued February 19, 1952, concerning appearances before the Subcommittee. This order provided, among other things, that it was the duty of any employee to appear before the Subcommittee when so ordered or subpoenaed, and to answer questions concerning subversion. The order specifically stated that any “employee who disobeys the declaration of this duty and order will be considered to have been insubordinate . . . and that such insubordination shall constitute grounds for discharge . ...” At the appointed time, Globe appeared before the Subcommittee and was interrogated by its counsel concerning his familiarity with the John Reid Club. He claimed that this was a matter which was entirely his “own business,” and, upon being pressed for an answer, he stated that the question was “completely out of line as far as my rights as a citizen are concerned, [and] I refuse to answer this question under the First and Fifth Amendments of the Constitution of the United States.” On the same grounds he refused to answer further questions concerning the Club, including one relating to his own membership. Upon being asked if he had observed any Communist activities on the part of members of the Club, Globe refused to answer, and suggested to committee counsel “that you get one of your trained seals up here and ask them.” He refused to testify whether he was “a member of the Communist Party now” “on the same grounds” and “as previously stated for previous reasons.” On May 2, by letter, Globe was discharged, “without further notice,” on “the grounds that [he had] been guilty of insubordination and of violation of Section 1028.1 of the Government Code of the State of California . . . .” The letter recited the fact that Globe had been served with a copy of the Board order relating to his “duty to testify as a County employee . . . before said committee” and that, although appearing as directed, he had refused to answer the question, “Are you a member of the Communist Party now?” Thereafter Globe requested a hearing before the Los Angeles County Civil Service Commission, but it found that, as a temporary employee, he was not entitled to a hearing under the Civil Service Rules. This the petitioner does not dispute. However, Globe contends that, despite his temporary-status, his summary discharge was arbitrary and unreasonable and, therefore, violative of due process. He reasons that his discharge was based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments. But the record does not support even an inference in this regard, and both the order and the statute upon which the discharge was based avoided it. In fact, California’s court held to the contrary, saying, “At no time has the cause of petitioner’s discharge been alleged to be anything but insubordination and a violation of section 1028.1, nor indeed under the record before us could it be.” 163 Cal. App. 2d, at 599, 329 P. 2d, at 974. Moreover, this finding is buttressed by the language of the order and of California’s statute. Both require the employee to answer any interrogation in the field outlined. Failure to answer “on any ground whatsoever any such questions” renders the employee “guilty of insubordination” and requires that he “be suspended and dismissed from his employment in the manner provided by law.” California law in this regard, as declared by its court, is that Globe “has no vested right to county employment and may therefore be discharged summarily.” We take this interpretation of California law as binding upon us. We, therefore, reach Globe’s contention that his summary discharge was nevertheless arbitrary and unreasonable. In this regard he places his reliance on Slochower v. Board, of Education, 350 U. S. 551 (1956). However, the New York statute under which Slochower was discharged specifically operated “to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge.” Id., at 558. This “built-in” inference of guilt, derived solely from a Fifth Amendment claim, we held to be arbitrary and unreasonable. But the test here, rather than being the invocation of any constitutional privilege, is the failure of the employee to answer. California has not predicated discharge on any “built-in” inference of guilt in its statute, but solely on employee insubordination for failure to give information which we have held that the State has a legitimate interest in securing. See Garner v. Board of Public Works of Los Angeles, 341 U. S. 716 (1951); Adler v. Board of Education, 342 U. S. 485 (1952). Moreover it must be remembered that here — unlike Slochower — the Board had specifically ordered its employees to appear and answer. We conclude that the case is controlléd by Beilan v. Board of Education of Philadelphia, 357 U. S. 399 (1958), and Lerner v. Casey, 357 U. S. 468 (1958). It is not determinative that the interrogation here was by a federal body rather than a state one, as it was in those cases. Globe had been ordered by his employer as well as by California’s law to appear and answer questions before the federal Subcommittee. These mandates made no reference to Fifth Amendment privileges. If Globe had simply refused, without more, to answer the Subcommittee’s questions, we think that under the principles of Beilan and Lerner California could certainly have discharged him. The fact that he chose to place his refusal on a Fifth Amendment claim puts the matter in no different posture, for as in Lerner, supra, at 477, California did not employ that claim as the basis for drawing an inference of guilt. Nor do we think that this discharge is vitiated by any deterrent effect that California's law might have had on Globe’s exercise of his federal claim of privilege. The State may nevertheless legitimately predicate discharge on refusal to give information touching on the field of security. See Garner and Adler, supra. Likewise, we cannot say as a matter of due process that the State’s choice of securing such information by means of testimony before a federal body can be denied. Finally, we do not believe that California’s grounds for discharge constituted an arbitrary classification. See Lerner, id., at 478. We conclude that the order of the County Board was not invalid under the Due Process Clause of the Fourteenth Amendment. Nor do we believe that the remand on procedural grounds required in Vitarelli v. Seaton, 359 U. S. 535 (1959), has any bearing here. First, we did not re.ach the constitutional issues raised in that case. Next, Vitarelli was a Federal Department of Interior employee who “could have been summarily discharged by the Secretary at any time without the giving of a reason.” Id., at 539. The Court held, however, that, since Vitarelli was dismissed on the grounds of national security rather than by summary discharge, and his dismissal “fell substantially short of the requirements of the applicable departmental regulations,” it was “illegal and of no effect.” Id., at 545. But petitioner here raises no such point, and clearly asserts that “whether or not petitioner Globe was accorded a hearing is not the issue here.” He bases his whole case on the claim “that due process affords petitioner Globe protection against the State’s depriving him of employment on this arbitrary ground” of his refusal on federal constitutional grounds to answer questions of the Subcommittee. Having found that on the record here the discharge for “insubordination” was not arbitrary, we need go no further. We do not pass upon petitioner's contention as to the Privileges and Immunities Clause of the Fourteenth Amendment, since it was neither raised in nor considered by the California courts. The judgments are. Affirmed. Mr. Chief Justice Warren took no part in the consideration or decision of this case. California Government Code, § 1028.1: “It shall be the duty of any public employee who may be subpenaed or ordered by the governing body of the state or local agency by which such employee is employed, to appear before such governing body, or a committee or subcommittee thereof, or by a duly authorized committee of the Congress of the United States or of the Legislature of this State, or any subcommittee of any such committee, to appear before such committee or subcommittee, and to answer under oath a question or questions propounded by such governing body, committee or subcommittee, or a member or counsel thereof, relating to: “(a) Present personal advocacy by the employee of the forceful or violent overthrow of the Government of the United States or of any state. “(b) Present knowing membership in any organization now advocating the forceful or violent overthrow of the Government of the United States or of any state. “(c) Past knowing membership at any time since October 3, 1945, in any organization which, to the knowledge of such employee, during the time of the employee’s membership advocated the forceful or violent overthrow of the Government of the United States or of any state. “(d) Questions as to present knowing membership of such employee in the Communist Party or as to past knowing membership in the Communist Party at any time since October 3, 1945. “(e) Present personal advocacy by the employee of the support of a foreign government against the United States in the event of hostilities between said foreign government and the United States. “Any employee who fails or refuses to appear or to answer under oath on any ground whatsoever any such questions so propounded shall be guilty of insubordination and guilty of violating this section and shall be suspended and dismissed from his employment in the manner provided by law.” This original order was the forerunner of § 1028.1 of the California Government Code, enacted in 1953, which with certain refinements embodied the requirements of the order into state law. It is against this section that petitioner levels his claims of unconstitutionality. See note 1, supra. “19.07. Probationary Period Following First Appointment. “An employee who has not yet completed his first probationary period may be discharged or reduced in accordance with Rule 19.09 by the appointing power by written notice, served on the employee and copy filed with the Commission, specifying the grounds and the particular facts on which the discharge or reduction is based. Such an employee shall be entitled to answer, explain, or deny the charges in writing within ten business days but shall not be entitled to a hearing, except in case of fraud or of discrimination because of political or religious opinions, racial extraction, or organized labor membership." “19.09. Consent of Commission. “No consent need be secured to the discharge or reduction of a temporary or recurrent employee.” It is' noteworthy that the California statute requires such information to be given before both state and federal bodies. Nor does petitioner make any attack on the failure of California’s statute to afford temporary employees such as he an opportunity to explain his failure to answer questions. It will be noted that permanent employees are granted such a privilege.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
UNITED STATES DEPARTMENT OF AGRICULTURE et al. v. MURRY et al. No. 72-848. Argued April 23, 1973 — Decided June 25, 1973 Douglas, J., delivered the opinion of the Court, in which Bren-NAN, Stewart, White, and Marshall, JJ., joined. Stewart, J., post, p. 514, and Marshall, J., post, p. 517, filed concurring opinions. Blackmun, J., filed a dissenting opinion, post, p. 520. RehNquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 522. Keith A. Jones argued the cause for appellants. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wood, Walter H. Fleischer, and William Kanter. Ronald F. Pollack argued the cause for appellees. With him on the brief was Roger A. Schwartz. Mr. Justice Douglas delivered the opinion of the Court. The Food Stamp Act of 1964, 7 U. S. C. § 2011 et seq., as amended in 1971, 84 Stat. 2048, has been applied to these appellees so as to lead the three-judge District Court to hold one provision of it unconstitutional. 348 F. Supp. 242. We noted probable jurisdiction. 410 U. S. 924. Appellee Murry has two sons and ten grandchildren in her household. Her monthly income is $57.50, which comes from her ex-husband as support for her sons. Her expenses far exceed her monthly income. By payment, however, of $11 she received $128 in food stamps. But she has now been denied food stamps because her ex-husband (who has remarried) had claimed her two sons and one grandchild as tax dependents in his 1971 income tax return. That claim, plus the fact that her eldest son is 19 years old, disqualified her household for food stamps under § 5 (b) of the Act. Appellee Alderete is in comparable straits because her ex-husband claimed the five children, who live with their mother, as tax dependents, the oldest being 18 years old. Appellee Beavert’s case is similar. Appellee Lee is the mother of five children, her entire income per month being $23 derived from public assistance. Her five children live with her. Her monthly bills are $249, of which $148 goes for food. Her husband is not a member of her household; he in fact deserted her and has supplied his family with no support. But he claimed the two oldest sons, ages 20 and 18, as tax dependents in his 1971 tax return, with the result that the wife’s household was denied food stamps. Appellee Nevarez is in comparable straits. Appellee Joe Valdez is 18 years old and married; and he and his wife have a child. He lives wholly on public assistance and applied for food stamps. His application was rejected because his father Ben claimed him as a tax dependent in his 1971 income tax return. Joe receives no support from Ben because Ben is in debt and unable to help support Joe. Appellee Broderson is 18 and married to a 16-year-old wife and they have a small child. Their monthly income is $110 consisting of his wages at a service station. He cannot get food stamps because his father claimed him as a tax dependent. The father, however, gives him no support. Appellee Schultz is 19 years old and she resides with a girl friend and the latter’s two children. Appellee Schultz has no income of any kind but received food stamps for the household where she lived. Food stamps, however, were discontinued when her parents claimed her as a tax dependent but refused to give her any aid. She soon got married, but she and her husband were denied food stamps because her parents had claimed her for tax dependency. These appellees brought a class action to enjoin the enforcement of the tax dependency provision of the Act; and, as noted, the three-judge court granted the relief. Appellees are members of households that have been denied food stamp eligibility solely because the households contain persons 18 years or older who have been claimed as “dependents” for federal income tax purposes by taxpayers who are themselves ineligible for food stamp relief. Section 5 (b) makes the entire household of which a “tax dependent” was a member ineligible for food stamps for two years: (1) during the tax year for which the dependency was claimed and (2) during the next 12 months. During these two periods of time § 5 (b) creates a conclusive presumption that the “tax dependent’s” household is not needy and has access to nutritional adequacy. The Acting Administrator of the Food and Nutrition Service of the Department of Agriculture admitted in this case that: “[I]n the case of households which have initially been determined to be ineligible for participation in the program on the basis of tax dependency, there are no factual issues to be presented or challenged by the household at such a hearing, other than the issue of whether or not a member of the household has been claimed as a dependent child by a taxpayer who is not a member of a household eligible for food assistance (a fact the household, in most cases, already will have disclosed in its application). If a household states that it has such a tax dependent member, the household is, in conformity with the Food Stamp Act, the program regulations, and the instructions of FNS governing the program administration by State agencies, determined to be ineligible.” App. 83. Thus, in the administration of the Act, a hearing is denied, and is not available as the dissent implies. As stated by the District Court the Act creates “an irrebuttable presumption contrary to fact.” 348 F. Supp., at 243. Moreover, an income tax return is filed, say in April 1973, for the year 1972. When the dependency deduction is filed, the year for which the dependency claim was made has already passed. Therefore the disqualification for food stamps cannot apply to 1972 but only to 1973. The tax dependency provision was generated by congressional concern about nonneedy households participating in the food stamp program. The legislative history reflects a concern about abuses of the program by “college students, children of wealthy parents.” But, as the District Court said, the Act goes far beyond that goal and its operation is inflexible. “Households containing no college student, that had established clear eligibility for Food Stamps and which still remain in dire need and otherwise eligible are now denied stamps if it appears that a household member 18 years or older is claimed by someone as a tax dependent.” 348 F. Supp., at 243. Tax dependency in a prior year seems to have no relation to the “need” of the dependent in the following year. It doubtless is much easier from the administrative point of view to have a simple tax “dependency” test that will automatically — without hearing, without witnesses, without findings of fact — terminate a household’s claim for eligibility for food stamps. Yet, as we recently stated in Stanley v. Illinois, 405 U. S. 645, 656: “[I]t may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley’s. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” We have difficulty in concluding that it is rational to assume that a child is not indigent this year because the parent declared the child as a dependent in his tax return for the prior year. But even on that assumption our problem is not at an end. Under the Act the issue is not the indigency of the child but the indigency of a different household with which the child happens to be living. Members of that different household are denied food stamps if one of its present members was used as a tax deduction in the past year by his parents even though the remaining members have no relation to the parent who used the tax deduction, even though they are completely destitute, and even though they are one, or 10 or 20 in number. We conclude that the deduction taken for the benefit of the parent in the prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives and rests on an irrebuttable presumption often contrary to fact. It therefore lacks critical ingredients of due process found wanting in Vlandis v. Kline, 412 U. S. 441, 452; Stanley v. Illinois, supra; and Bell v. Burson, 402 U. S. 535. Affirmed. Section 5 (b) of the Act provides in part: “Any household which includes a member who has reached his eighteenth birthday and who is claimed as a dependent child for Federal income tax purposes by a taxpayer who is not a member of an eligible household, shall be ineligible to participate in any food stamp program established pursuant to this chapter during the tax period such dependency is claimed and for a period of one year after expiration of such tax period. ...” 7 U. S. C. §2014 (b). (Emphasis added.) The Regulations provide: “ ‘Dependent’ for the purpose of § 271.3 (d) of this subchapter, means a person claimed as a dependent for Federal income tax purposes by a parent or guardian and living apart from the household of such parent or guardian.” 7 CFR § 270.2 (q). “Any household which includes a member who has reached his 18th birthday and who is claimed as a dependent for Federal income tax purposes by a member of a household which is not certified as being eligible for food assistance shall be ineligible to participate in the program during the tax period such dependency is claimed and for a period of 1 year after expiration of such tax period.” 7 CFR § 271.3 (d). The relevant exemption provision in § 151 (e)(1) of the Internal Revenue Code, as amended, 26 U. S. C. § 151 (e) (1) (1970 ed. and Supp. I), reads: “An exemption of $750 [shall be allowed] for each dependent (as defined in section 152)— “(A) whose gross income for the calendar year in which the taxable year of the taxpayer begins is less than $750, or “(B) who is a child of the taxpayer and who (i) has not attained the age of 19 at the close of the calendar year in which the taxable year of the taxpaj-er begins, or (ii) is a student. . . .” And the term “dependent” is defined as meaning “any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer . . . : “(1) A son or daughter of the taxpayer . . . .” 26 U. S. C. § 152 (a)(1). Household participation is based on current circumstances, not past needs. Food stamp certifications for households on public assistance coincide with their welfare certification periods. 7 CFR §§ 271.4 (a) (1) and 271.4 (a) (4) (ii). For nonpublic assistance households, certification periods last normally only three months. 7 CFR § 271.4 (a) (4) (iii). Longer certification periods are provided only “if there is little likelihood of changes in household status.” 7 CFR §§271.4 (a) (4) (iii) (b), (c), and (d). 116 Cong. Rec. 41979.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 3 ]	sc_adminaction
GADE, DIRECTOR, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY v. NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION No. 90-1676. Argued March 23, 1992 Decided June 18, 1992 O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, in which Rehnquist, C. J., and White, Scaua, and Kennedy, JJ., joined, and an opinion with respect to Part II, in which Rehnquist, C. J., and White and Scaua, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, post, p. 109. Souter, J., filed a dissenting opinion, in which Blackmun, Stevens, and Thomas, JJ., joined, post, p. 114. John A. Simon, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were Roland W. Burris, Attorney General, Rosalyn B. Kap-lan, Solicitor General, and Tanya Solov, Assistant Attorney General. Donald T. Bliss argued the cause for respondent. With him on the brief were Arthur B. Culvahouse, Jr., Bruce J. Parker, and John T. Van Gessel. William K. Kelley argued the cause pro hac vice for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Deputy Solic- Hot General Mahoney, Allen H. Feldman, Steven J. Mandel, and Nathaniel I. Spiller Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Jane Lauer Barker and Richard Corenthal, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Michael E. Carpenter of Maine, J Joseph Cur-ran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, RoberpJ. Del Tufo of New Jersey, and Lee Fisher of Ohio; and for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Be'rzon and Laurence Gold. Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Glen D. Nager, Robert C. Gombar, Stephen A Bokat, Robin S. Conrad, and Mona C. Zeiberg; for the Flavor & Extract Manufacturers’ Association et al. by Daniel R. Thompson and John P. McKenna; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A Samp. Justice O’Connor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II in which The ChieF Justice, Justice White, and Justice Scalia join. In 1988, the Illinois General Assembly enacted the Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act, Ill. Rev. Stat., eh. Ill, ¶¶ 7701-7717 (1989), and the Hazardous Waste Laborers Licensing Act, Ill. Rev. Stat., ch. Ill, ¶¶ 7801-7815 (1989) (together, licensing acts). The stated purpose of the licensing acts is both “to promote job safety” and “to protect life, limb and property.” ¶¶ 7702, 7802. In this case, we consider whether these “dual impact” statutes, which protect both workers and the general public, are pre-empted by the federal Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U. S. C. §651 et seq. (OSH Act), and the standards promulgated thereunder by the Occupational Safety and Health Administration (OSHA). I The OSH Act authorizes the Secretary of Labor to promulgate federal occupational safety and health standards. 29 U. S. C. § 655. In the Superfund Amendments and Reau-thorization Act of 1986 (SARA), Congress directed the Secretary of Labor to “promulgate standards for the health and safety protection of employees engaged in hazardous waste operations” pursuant to her authority under the OSH Act. SARA, Pub. L. 99-499, Title I, §126, 100 Stat. 1690-1692, codified at note following 29 U. S. C. § 655. In relevant part, SARA requires the Secretary to establish standards for the initial and routine training of workers who handle hazardous wastes. In response to this congressional directive, OSHA, to which the Secretary has delegated certain of her statutory responsibilities, see Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 147, n. 1 (1991), promulgated regulations on “Hazardous Waste Operations and Emergency Response,” including detailed regulations on worker training requirements. 51 Fed. Reg. 45654, 45665-45666 (1986) (interim regulations); 54 Fed. Reg. 9294, 9320-9321 (1989) (final regulations), codified at 29 CFR § 1910.120 (1991). The OSHA regulations require, among other things, that workers engaged in an activity that may expose them to hazardous wastes receive a minimum of 40 hours of instruction off the site, and a minimum of three days actual field experience under the supervision of a trained supervisor. § 1910.120(e)(3)(i). Workers who are on the site only occasionally or who are working in areas that have been determined to be under the permissible exposure limits must complete at least 24 hours of off-site instruction and one day of actual field experience. §§ 1910.120(e)(3)(ii) and (iii). On-site managers and supervisors directly responsible for hazardous waste operations must receive the same initial training as general employees, plus at least eight additional hours of specialized training on various health and safety programs. § 1910.120(e)(4). Employees and supervisors are required to receive eight hours of refresher training annually. § 1910.120(e)(8). Those who have satisfied the training and field experience requirement receive a written certification; uncertified workers are prohibited from engaging in hazardous waste operations. § 1910.120(e)(6). In 1988, while OSHA’s interim hazardous waste regulations were in effect, the State of Illinois enacted the licensing acts at issue here. The laws are designated as acts “in relation to environmental protection,” and their stated aim is to protect both employees and the general public by licensing hazardous waste equipment operators and laborers working at certain facilities. Both licensing acts require a license applicant to provide a certified record of at least 40 hours of training under an approved program conducted within Illinois, to pass a written examination, and to complete an annual refresher course of at least eight hours of instruction. Ill. Rev. Stat., ch. Ill, ¶¶ 7705(c) and (e), 7706(c) and (d), 7707(b), 7805(c) and (e), 7806(b). In addition, applicants for a hazardous waste crane operator’s license must submit “a certified record showing operation of equipment used in hazardous waste handling for a minimum of 4,000 hours.” ¶ 7705(d). Employees who work without the proper license, and employers who knowingly permit an unlicensed employee to work, are subject to escalating fines for each offense. ¶¶ 7715, 7716, 7814. The respondent in this case, National Solid Wastes Management Association (Association), is a national trade association of businesses that remove, transport, dispose, and handle waste material, including hazardous waste. The Association’s members are subject to the OSH Act and OSHA regulations, and are therefore required to train, qualify, and certify their hazardous waste remediation workers. 29 CFR §1910.120 (1991). For hazardous waste operations conducted in Illinois, certain of the workers employed by the Association’s members are also required to obtain licenses pursuant to the Illinois licensing acts. Thus, for example, some of the Association’s members must ensure that their employees receive not only the 3 days of field experience required for certification under the OSHA regulations, but also the 500 days of experience (4,000 hours) required for licensing under the state statutes. Shortly before the state licensing acts were due to go into effect, the Association brought a declaratory judgment action in United States District Court against Bernard Killian, the former Director of the Illinois Environmental Protection Agency (IEPA); petitioner Mary Gade is Killian’s successor in office and has been substituted as a party pursuant to this Court’s Rule 35.3. The Association sought to enjoin IEPA from enforcing the Illinois licensing acts, claiming that the acts were pre-empted by the OSH Act and OSHA regulations and that they violated the Commerce Clause of the United States Constitution. The District Court held that state laws that attempt to regulate workplace safety and health are not pre-empted by the OSH Act when the laws have a “legitimate and substantial purpose apart from promoting job safety.” App. to Pet. for Cert. 54. Applying this standard, the District Court held that the Illinois licensing acts were not pre-empted because each protected public safety in addition to promoting job safety. Id., at 56-57. The court indicated that it would uphold a state regulation implementing the 4,000-hour experience requirement, as long as it did not conflict with federal regulations, because it was reasonable to conclude that workers who satisfy the requirement “will be better skilled than those who do not; and better skilled means fewer accidents, which equals less risk to public safety and the environment.” Id., at 59. At the same time, the District Court invalidated the requirement that applicants for a hazardous waste license be trained “within Illinois” on the ground that the provision did not contribute to Illinois’ stated purpose of protecting public safety. Id., at 57-58. The court declined to consider the Association’s Commerce Clause challenge for lack of ripeness. Id., at 61-62. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. National Solid Wastes Management Assn. v. Killian, 918 F. 2d 671 (1990). The Court of Appeals held that the OSH Act pre-empts all state law that “constitutes, in a direct, clear and substantial way, regulation of worker health and safety,” unless the Secretary has explicitly approved the state law. Id., at 679. Because many of the regulations mandated by the Illinois licensing acts had not yet reached their final form, the Court of Appeals remanded the case to the District Court without considering which, if any, of the Illinois provisions would be pre-empted. Id., at 684. The court made clear, however, its view that Illinois “cannot regulate worker health and safety under the guise of environmental regulation,” and it rejected the District Court’s conclusion that the State’s 4,000-hour experience requirement could survive preemption simply because the rule might also enhance public health and safety. Ibid. Writing separately, Judge Easter-brook expressed doubt that the OSH Act pre-empts non-conflicting state laws. Id., at 685-688. He concluded, however, that if the OSH Act does pre-empt state law, the majority had employed an appropriate test for determining whether the Illinois licensing acts were superseded. Id., at 688. We granted certiorari, 502 U. S. 1012 (1991), to resolve a conflict between the decision below and decisions in which other Courts of Appeals have found the OSH Act to have a much narrower pre-emptive effect on “dual impact” state regulations. See Associated Industries of Massachusetts v. Snow, 898 F. 2d 274, 279 (CA1 1990); Environmental Encapsulating Corp. v. New York City, 855 F. 2d 48, 57 (CA21988); Manufacturers Assn. of Tri-County v. Knepper, 801 F. 2d 130, 138 (CA3 1986), cert. denied, 484 U. S. 815 (1987); New Jersey State Chamber of Commerce v. Hughey, 774 F. 2d 587, 593 (CA3 1985). II Before addressing the scope of the OSH Act’s pre-emption of dual impact state regulations, we consider petitioner’s threshold argument, drawn from Judge Easterbrook’s separate opinion below, that the Act does not pre-empt noncon-flicting state regulations at all. “[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent. ‘“The purpose of Congress is the ultimate touchstone.”’” Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 208 (1985) (quoting Malone v. White Motor Corp., 435 U. S. 497, 504 (1978)). “To discern Congress’ intent we examine the explicit statutory language and the structure and purpose of the statute.” Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 138 (1990); see also FMC Corp. v. Holliday, 498 U. S. 52, 56-57 (1990). In the OSH Act, Congress endeavored “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U. S. C. § 651(b). To that end, Congress authorized the Secretary of Labor to set mandatory occupational safety and health standards applicable to all businesses affecting interstate commerce, 29 U. S. C. § 651(b)(3), and thereby brought the Federal Government into a field that traditionally had been occupied by the States. Federal regulation of the workplace was not intended to be all encompassing, however. First, Congress expressly saved two areas from federal pre-emption. Section 4(b)(4) of the OSH Act states that the Act does not “supersede or in any’ manner affect any workmen’s compensation law or... enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 U. S. C. § 653(b)(4). Section 18(a) provides that the Act does not “prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no [federal] standard is in effect.” 29 U. S. C. § 667(a). Congress not only reserved certain areas to state regulation, but it also, in § 18(b) of the Act, gave the States the option of pre-empting federal regulation entirely. That section provides: “Submission of State plan for development and enforcement of State standards to preempt applicable Federal standards. “Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated [by the Secretary under the OSH Act] shall submit a State plan for the development of such standards and their enforcement.” 29 U.S.C. § 667(b). About half the States have received the Secretary’s approval for their own state plans as described in this provision. 29 CFR pts. 1952,1956 (1991). Illinois is not among them. In the decision below, the Court of Appeals held that § 18(b) “unquestionably” pre-empts any state law or regulation that establishes an occupational health and safety standard on an issue for which OSHA has already promulgated a standard, unless the State has obtained the Secretary’s approval for its own plan. 918 F. 2d, at 677. Every other federal and state court confronted with an OSH Act pre-emption challenge has reached the same conclusion, and so do we. Pre-emption may be either expressed or implied, and “is compelled whether Congress' command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977); Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 95 (1983); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 152-153 (1982). Absent explicit pre-emptive language, we have recognized at least two types of implied preemption: field pre-emption, where the scheme of federal regulation is “ ‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ ” id., at 153 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)), and conflict pre-emption, where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941); Felder v. Casey, 487 U. S. 131, 138 (1988); Perez v. Campbell, 402 U. S. 637, 649 (1971). Our ultimate task in any pre-emption ease is to determine whether state regulation is consistent with the structure and purpose of the statute as a whole. Looking to “the provisions of the whole law, and to its object and policy,” Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987) (internal quotation marks and citations omitted), we hold that nonap-proved state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly preempted as in conflict with the full purposes and objectives of the OSH Act, Hines v. Davidowitz, supra. The design of the statute persuades us that Congress intended to subject employers and employees to only one set of regulations, be it federal or state, and that the only way a State may regulate an OSHA-regulated occupational safety and health issue is pursuant to an approved state plan that displaces the federal standards. The principal indication that Congress intended to preempt state law is § 18(b)’s statement that a State “shall” submit a plan if it wishes to “assume responsibility” for “development and enforcement... of occupational safety and health stándards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated.” The unavoidable implication of. this provision is that a State may not enforce its own occupational safety and health standards without obtaining the Secretary’s approval, and petitioner concedes that § 18(b) would require an approved plan if Illinois wanted to “assume responsibility” for the regulation of occupational safety and health within the State. Petitioner contends, however, that an approved plan is necessary only if the State wishes completely to replace the federal regulations, not merely to supplement them. She argues that the correct interpretation of § 18(b) is that posited by Judge Easterbrook below: i. e., a State may either “oust” the federal standard by submitting a state plan to the Secretary for approval or “add to” the federal standard without seeking the Secretary’s approval. 918 F. 2d, at 685 (Easterbrook, J., dubitante). Petitioner’s interpretation of § 18(b) might be plausible were we to interpret that provision in isolation, but it simply is not tenable in light of the OSH Act’s surrounding provisions. “[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law.” Dedeaux, supra, at 51 (internal quotation marks and citations omitted). The OSH Act as a whole evidences Congress’ intent to avoid subjecting workers and employers to duplicative regulation; a State may develop an occupational safety and health program tailored to its own needs, but only if it is willing completely to displace the applicable federal regulations. Cutting against petitioner’s interpretation of § 18(b) is the language of § 18(a), which saves from pre-emption any state law regulating an occupational safety and health issue with respect to which no federal standard is in effect. 29 U. S. C. § 667(a). Although this is a saving clause, not a pre-emption clause, the natural implication of this provision is that state laws regulating the same issue as federal laws are not saved, even if they merely supplement the federal standard. Moreover, if petitioner’s reading of § 18(b) were correct, and if a State were free to enact noneonflieting safety and health regulations, then § 18(a) would be superfluous: There is no possibility of conflict where there is no federal regulation. Because “[i]t is our duty ‘to give effect, if possible, to every clause and word of a statute,’ ” United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)), we conclude that § 18(a)’s preservation of state authority in the absence of a federal standard presupposes a background pre-emption of all state occupational safety and health standards whenever a federal standard governing the same issue is in effect. Our understanding of the implications of § 18(b) is likewise bolstered by § 18(c) of the Act, 29 U. S. C. § 667(e), which sets forth the conditions that must be satisfied before the Secretary can approve a plan submitted by a State under subsection (b). State standards that affect interstate commerce will be approved only if they “are required by compelling local conditions” and “do not unduly burden interstate commerce.” § 667(c)(2). If a State could supplement federal regulations without undergoing the § 18(b) approval process, then the protections that § 18(c) offers to interstate com-meree would easily be undercut. It would make little sense to impose such a condition on state programs intended to supplant federal regulation and not those that merely supplement it: The burden on interstate commerce remains the same. Section 18(f) also confirms our view that States are not permitted to assume an enforcement role without the Secretary’s approval, unless no federal standard is in effect. That provision gives the Secretary the authority to withdraw her approval of a state plan. 29 U. S. C. § 667(f). Once approval is withdrawn, the plan “cease[s] to be in effect” and the State is permitted to assert jurisdiction under its occupational health and safety law only for those cases “commenced before the withdrawal of the plan.” Ibid. Under petitioner’s reading of § 18(b), § 18(f) should permit the continued exercise of state jurisdiction over purely “supplemental” and noneonflieting standards. Instead, § 18(f) assumes that the State loses the power to enforce all of its occupational safety and health standards once approval is withdrawn. The same assumption of exclusive federal jurisdiction in the absence of an approved state plan is apparent in the transitional provisions contained in § 18(h) of the Act. 29 U. S. C. § 667(h). Section 18(h) authorized the Secretary of Labor, during the first two years after passage of the Act, to enter into an agreement with a State by which the State would be permitted to continue to enforce its own occupational health and safety standards for two years or until final action was taken by the Secretary pursuant to § 18(b), whichever was earlier. Significantly, § 18(h) does not say that such an agreement is only necessary when the State wishes fully to supplant federal standards. Indeed, the original Senate version of the provision would have allowed a State to enter into such an agreement only when it wished to enforce standards “not in conflict with Federal occupational health and safety standards,” a category which included “any State occupational health and safety standard which provides for more stringent health and safety regulations than do the Federal standards.” S. 2193, § 17(h), reprinted in 116 Cong. Rec. 37637 (1970). Although that provision was eliminated from the final draft of the bill, thereby allowing agreements for the temporary enforcement of less stringent state standards, it is indicative of the congressional understanding that a State was required to enter into a transitional agreement even when its standards were stricter than federal standards. The Secretary’s contemporaneous interpretation of'§ 18(h) also expresses that understanding. See 29 CFR § 1901.2 (1972) (“Section 18(h) permits the Secretary to provide an alternative to the exclusive Federal jurisdiction [over] occupational safety and health issue[s]. This alternative is temporary and may be considered a step toward the more permanent alternative to exclusive Federal jurisdiction provided by sections 18(b) and (c) following submission and approval of a plan submitted by a State for the development and enforcement of occupational safety and health standards”) (emphases added). Looking at the provisions of § 18 as a whole, we conclude that the OSH Act precludes any state regulation of an occupational safety or health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved pursuant to § 18(b). Our review of the Act persuades us that Congress sought to promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation. It thus established a system of uniform federal occupational health and safety standards, but gave States the option of pre-empting federal regulations by developing their own occupational safety and health programs. In addition, Congress offered the States substantial federal grant moneys to assist them in developing their own programs. See OSH Act §23, 29 U. S. C. §§ 672(a), (b), and (f) (for three years following enactment, the Secretary may award up to 90% of the costs to a State of developing a state occupational safety and health plan); 29 U. S. C. § 672(g) (States that develop approved plans may receive funding for up to 50% of the costs of operating their occupational health and safety programs). To allow a State selectively to “supplement” certain federal regulations with ostensibly noneonflieting standards would be inconsistent with this federal scheme of establishing uniform federal standards, on the one hand, and encouraging States to assume full responsibility for development and enforcement of their own OSH programs, on the other. We cannot accept petitioner’s argument that the OSH Act does not pre-empt nonconflicting state laws because those laws, like the Act, are designed to promote worker safety. In determining whether state law “stands as an obstacle” to the full implementation of a federal law, Hines v. Davidowitz, 312 U. S., at 67, “it is not enough to say that the ultimate goal of both federal and state law” is the same, International Paper Co. v. Ouellette, 479 U. S. 481, 494 (1987). “A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach th[at] goal.” Ibid.; see also Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U. S. 461, 477 (1984) (state statute establishing association to represent agricultural producers pre-empted even though it and the federal Agricultural Fair Practices Act “share the goal of augmenting the producer’s bargaining power”); Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 286-287 (1986) (state statute preventing three-time violators of the National Labor Relations Act from doing business with the State is pre-empted even though state law was designed to reinforce requirements of federal Act). The OSH Act does not foreclose a State from enacting its own laws to advance the goal of worker safety, but it does restrict the ways in which it can do so. If a State wishes to regulate an issue of worker safety for which a federal standard is in effect, its only option is to obtain the prior approval of the Secretary of Labor, as described in § 18 of the Act. h*4 hH Petitioner next argues that, even if Congress intended to pre-empt all nonapproved state occupational safety and health regulations whenever a federal standard is in effect, the OSH Act’s pre-emptive effect should not be extended to state laws that address public safety as well as occupational safety concerns. As we explained in Part II, we understand § 18(b) to mean that the OSH Act pre-empts all state “occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated.” 29 U. S. C. § 667(b). We now consider whether a dual impact law can be an “occupational safety and health standard” subject to pre-emption under the Act. The OSH Act defines an “occupational safety and health standard” as “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U. S. C. § 652(8). Any state law requirement designed to promote health and safety in the workplace falls neatly within the Act’s definition of an “occupational safety and health standard.” Clearly, under this definition, a state law that expressly declares a legislative purpose of regulating occupational health and safety would, in the absence of an approved state plan, be pre-empted by an OSHA standard regulating the same subject matter. But petitioner asserts that if the state legislature articulates a purpose other than (or in addition to) workplace health and safety, then the OSH Act loses its pre-emptive force. We disagree. Although “part of the pre-empted field is defined by reference to the purpose of the state law in question,... another part of the field is defined by the state law’s actual effect.” English v. General Electric Co., 496 U. S. 72, 84 (1990) (citing Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n,	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 90 ]	sc_adminaction
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. SHELL OIL CO. No. 82-825. Argued October 31, 1983 Decided April 2, 1984 Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, and Stevens, JJ., joined. O’Connor, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 82. Richard G. Wilkins argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Wallace, Philip B. Sklover, and Vella M. Fink. Robert E. Williams argued the cause for respondent. With him on the brief were Douglas S. McDowell, Thomas R. Bagby, W. Stanley Walch, Charles A. Newman, and Steven J. Killworth Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Cynthia Wicker and Stephan A. Bokat; for the Equal Employment Advisory Council by Lovic A. Brooks, Jr.; and for the National Association of Manufacturers by William E. Blaster and Douglas B. M. Ehlke. Justice Marshall delivered the opinion of the Court. Section 707(e) of Title VII of the Civil Rights Act of 1964, as amended, authorizes the Equal Employment Opportunity Commission (EEOC) “to investigate and act on a charge” that an employer has engaged in “a pattern or practice” of employment discrimination. Section 706(b) and regulations promulgated thereunder govern the form and content of such a charge and the manner in which the employer should be notified of the allegations of wrongdoing contained therein. The question presented in this case is how much information must be included in the charge and provided to the employer before the Commission may secure judicial enforcement of an administrative subpoena compelling the employer to disclose personnel records and other material relevant to the charge. I On September 27, 1979, Commissioner Eleanor Holmes Norton, then Chair of the EEOC, issued a sworn charge, alleging that respondent, Shell Oil Co., “has violated and continues to violate Sections 703 and 707 of the Civil Rights Act of 1964, as amended, by discriminating against Blacks and females on the basis of race and sex with respect to recruitment, hiring, selection, job assignment, training, testing, promotion, and terms and conditions of employment.” App. to Pet. for Cert. 44a. The charge specified respondent’s Wood River Refinery as the locale of the alleged statutory violations. In addition, the charge identified six occupational categories access to which had been affected by racial discrimination and seven occupational categories access to which had been affected by gender discrimination. As originally drafted, the charge did not specify a date on which these alleged unlawful employment practices began. The charge was filed with the St. Louis District Office of the EEOC on October 16, 1979. A copy of the charge, accompanied by a cover letter and a request for various information from the personnel records of the Wood River Refinery, was served on respondent 10 days later. In the course of discussions with the EEOC over the next several months, respondent took the position that “the charge that has been issued is not supportable by the facts.” App. 91. In defense of that position, respondent identified a “multi-county area” surrounding the Wood River Refinery that, in respondent’s view, was the “appropriate local labor market for the Refinery.” Id., at 90. Respondent argued that, when the percentages of Negroes and women in the labor market so defined were compared to the percentages of Negroes and women in the overall work force of the refinery (and the percentages of Negroes and women who had recently been hired, promoted, or accepted into the refinery’s training programs), it became apparent that respondent was not engaging in systemic discrimination. Id., at 90-91. Respondent submitted some aggregate employment statistics supportive of its arguments but refused to disclose the records and data requested by the EEOC unless and until the Commission answered a series of questions regarding the basis of the charge and furnished information substantiating its answers. The EEOC took the position that, until it had more evidence, it could not evaluate respondent’s contention that the proper labor market constituted not the St. Louis Standard Metropolitan Statistical Area but, rather, the smaller area proposed by respondent. Id., at 95. In answer to respondent’s arguments concerning the numbers of Negroes and women employed at the refinery, the EEOC referred respondent to § 16.2 of the EEOC Compliance Manual, which sets forth the standards the Commission has adopted for selecting employers suspected of engaging in systemic employment discrimination. One of the groups targeted for investigation under that provision consists of “employers... who employ a substantially smaller proportion of minorities and/or women in their higher paid job categories than in their lower paid job categories.” Respondent was thus alerted to the fact that its contentions based upon the percentages of minorities and women in the aggregate work force of the refinery could not conclusively establish its compliance with the EEOC guidelines. On those bases, the EEOC rejected respondent’s suggestion that the charge be withdrawn and reiterated the request for information from respondent’s files. When respondent persisted in its refusal to provide the requested data, the EEOC issued a subpoena duces tecum, directing respondent to turn over certain information pertaining to its employment practices from 1976 to the present. In accordance with Commission regulations, respondent petitioned the District Director of the EEOC to revoke or modify the subpoena. The District Director altered the subpoena in one minor respect, but otherwise denied relief. The General Counsel of the Commission upheld the decision of the District Director and ordered respondent to comply with the subpoena by September 18, 1980. Instead of complying, respondent filed suit in the District Court for the Eastern District of Missouri to quash the subpoena and enjoin the Commission’s investigation. Respondent alleged, inter alia, that the subpoena was unenforceable because the Commission had failed to disclose facts sufficient to satisfy the mandate of § 706(b) of Title VII, 86 Stat. 104, 42 U. S. C. §2000e-5(b). Subsequently, Commissioner Norton amended the charge to allege that respondent “had engaged in the identified unlawful employment practices on a continuing basis from at least July 2, 1965, until the present.” When respondent still refused to comply with the requests for information, the Commission filed an action in the District Court for the Southern District of Illinois seeking enforcement of the subpoena. That action was transferred to the District Court in Missouri and consolidated with the suit brought by respondent. The District Court denied respondent’s request to block the Commission’s inquiry into respondent’s records and enforced the subpoena. 523 F. Supp. 79 (ED Mo. 1981). The court reasoned that “[t]he purpose of a charge under section 706... is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case.” Id., at 86. On that basis, the court rejected respondent’s argument “that the Commissioner’s charge does not specify sufficient facts.” Ibid. A panel of the Court of Appeals reversed. 676 F. 2d 322 (CA8 1982). The court found that the EEOC had failed to comply with either the provisions of § 706(b) governing the specificity of the notice given an accused employer or the Commission’s own regulations governing the contents of a charge. Id., at 325. The court held that the charge and the notice thereof “should at least inform the employer of the approximate dates of the unlawful practices” and should include enough other information to show that those dates have “ ‘some basis in fact.’ ” Ibid, (quoting EEOC v. K-Mart Corp., 526 F. Supp. 121, 125 (ED Mich. 1981). In addition, the charge and notice should contain a “statement of the circumstances” of the alleged statutory violations “supported by some factual or statistical basis.” 676 F. 2d, at 325-326. In the court’s view, the material provided to respondent in this case failed to satisfy the foregoing standards. The EEOC’s petition for rehearing en banc was denied. 689 F. 2d 757 (1982). We granted certiorari to resolve the confusion in the Courts of Appeals concerning the material that must be included in charges of employment discrimination and notices thereof before the EEOC may obtain judicial enforcement of an administrative subpoena. 459 U. S. 1199 (1983). We now reverse. II A Title VII of the Civil Rights Act of 1964, as amended, prohibits various employment practices involving discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U. S. C. §§2000e-2, 2000e-3. Primary responsibility for enforcing Title VII has been entrusted to the EEOC. §2000e-5(a). In its current form, Title VII sets forth “an integrated, multistep enforcement procedure” that enables the Commission to detect and remedy instances of discrimination. See Occidental Life Insurance Co. v. EEOC, 432 U. S. 355, 359 (1977). The process begins with the filing of a charge with the EEOC alleging that a given employer has engaged in an unlawful employment practice. A charge may be filed by an aggrieved individual or by a member of the Commission. § 2000e-5(b). A Commissioner may file a charge in either of two situations. First, when a victim of discrimination is reluctant to file a charge himself because of fear of retaliation, a Commissioner may file a charge on behalf of the victim. Ibid.; 29 CFR §§ 1601.7, 1601.11 (1983). Second, when a Commissioner has reason to think that an employer has engaged in a “pattern or practice” of discriminatory conduct, he may file a charge on his own initiative. §2000e-6(e). Prior to 1972, different statutory requirements governed charges filed by aggrieved individuals and charges filed by Commissioners. Aggrieved parties were required simply to state their allegations “in writing under oath.” Pub. L. 88-352, § 706(a), 78 Stat. 259. By contrast, a Commissioner could file a charge only when he had “reasonable cause to believe a violation of [Title VII] ha[d] occurred,” and was obliged to “se[t] forth the facts upon which [the charge was] based.” Ibid. In 1972, as part of a comprehensive set of amendments to the provisions of Title VII dealing with the EEOC’s enforcement powers, Congress eliminated the special requirements applicable to Commissioners’ charges. In its present form, § 706(b) of the statute provides simply that “[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.” 42 U. S. C. §2000e-5(b). As originally enacted, Title VII required the EEOC to provide a copy of a charge to the employer accused of discrimination, but did not prescribe any time period within which the copy was to be delivered. Pub. L. 88-352, § 706(a), 78 Stat. 259. In 1972, Congress altered that provision to require the Commission to “serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the] employer... within ten days” of the filing of the charge. 42 U. S. C. §2000e-5(b). After a charge has been filed, the EEOC conducts an investigation of the allegations contained therein. In connection with its inquiry, the Commission is entitled to inspect and copy “any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.” §2000e-8(a). In obtaining such evidence, the Commission may exercise all of the powers conferred upon the National Labor Relations Board by 29 U. S. C. §161, including the authority to issue administrative subpoenas and to request judicial enforcement of those subpoenas. § 2000e-9. If, after completing its investigation, the EEOC determines that there is “reasonable cause to believe that the charge is true,” it must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e-5(b). If those methods prove ineffectual, the Commission is empowered to bring a civil action against the employer. § 2000e — 5(f)(1). At issue in this case is the relationship between three of the steps in the integrated procedure just described: the charge; the notice given to the employer of the allegations against him; and the judicial enforcement of an administrative subpoena of personnel records relevant to the allegations. It is apparent from the structure of the statute that two of those steps — the charge and the subpoena — are closely related. As indicated above, the EEOC's investigative authority is tied to charges filed with the Commission; unlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access only to evidence “relevant to the charge under investigation.” §2000e-8(a). The legislative history makes clear that this limitation on the Commission’s authority is not accidental. As Senators Clark and Case, the “bipartisan captains” responsible for Title VII during the Senate debate, explained in their Interpretative Memorandum: “It is important to note that the Commission’s power to conduct an investigation can be exercised only after a specific charge has been filed in writing. In this respect the Commission’s investigatory power is significantly narrower than that of the Federal Trade Commission or of the Wage and Hour Administrator, who are authorized to conduct investigations, inspect records, and issue subpenas, whether or not there has been any complaint of wrongdoing.” 110 Cong. Rec. 7214 (1964) (citations omitted). When Congress in 1972 revamped Title VII, it retained the provision linking the Commission’s investigatory power to outstanding charges, and nothing in the legislative history of the 1972 amendments suggests that Congress intended to expand the range of materials to which the Commission could demand access. In construing the EEOC’s authority to request judicial enforcement of its subpoenas, we must strive to give effect to Congress’ purpose in establishing a linkage between the Commission’s investigatory power and charges of discrimination. If the EEOC were able to insist that an employer obey a subpoena despite the failure of the complainant to file a valid charge, Congress’ desire to prevent the Commission from exercising unconstrained investigative authority would be thwarted. Accordingly, we hold that the existence of a charge that meets the requirements set forth in § 706(b), 42 U. S. C. §2000e-5(b), is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC. The relationship between the requirement that an employer be notified promptly of allegations against it and the EEOC’s subpoena power is less clear. The statutory provisions that define the Commission’s investigative authority do not mention the notice requirement. See §§2000e-8, 2000e-9. And nothing in the legislative history of the sharpened notice provision that was added to § 706 in 1972 suggests that Congress intended or assumed that compliance therewith was a prerequisite to judicial enforcement of the Commission’s subpoenas. There is thus substantial reason to doubt whether an employer should be able to resist efforts by the Commission to enforce a subpoena on the ground that the EEOC had not adequately notified the employer of the “date, place and circumstances” of the employer’s alleged unlawful employment practices or had not done so within 10 days of the filing of the charge. For two reasons, however, we decline to decide that troublesome question in this case. First, all of the parties have assumed that noncompliance with the notice requirement is a legitimate defense to a subpoena enforcement action. Second, our conclusion that the Commission did comply with the notice provision in this case, see Part II-C, infra, renders it unnecessary to determine whether the judgment of the Court of Appeals could withstand scrutiny if the Commission had not done so. In short, solely for the purpose of our decision today, we assume that compliance with the notice requirement embodied in § 706(b) is a jurisdictional prerequisite to judicial enforcement of a Commission subpoena. B The statute itself prescribes only minimal requirements pertaining to the form and content of charges of discrimination. Section 706(b) provides merely that “[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.” 42 U. S. C. §2000e-5(b). However, in accordance with the last-mentioned clause, the EEOC has promulgated a regulation that provides, in pertinent part, that “[e]ach charge should contain... [a] clear and concise statement of the facts, including the pertinent dates, constituting the alleged unlawful employment practices.” 29 CFR § 1601.12(a)(3) (1983). Until rescinded, this rule is binding on the Commission as well as complainants. See United States v. Nixon, 418 U. S. 683, 695-696 (1974); Service v. Dulles, 354 U. S. 363, 388 (1957). There is no question that the charge in this case comported with the requirements embodied in the statute; Commissioner Norton’s allegations were made in writing and under oath. The only ground on which the validity of the charge can fairly be challenged is Commissioner Norton’s compliance with the Commission’s regulation. The Court of Appeals concluded that the charge did not contain enough information to satisfy § 1601.12(a)(3). 676 F. 2d, at 325. To assess that conclusion, we must explicate the crucial portion of the regulation as applied to a charge alleging a pattern or practice of discrimination. Three considerations, drawn from the structure of Titie VII, guide our analysis. First, a charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit. The function of a Title VII charge, rather, is to place the EEOC on notice that someone (either a party claiming to be aggrieved or a Commissioner) believes that an employer has violated the title. The EEOC then undertakes an investigation into the complainant’s allegations of discrimination. Only if the Commission, on the basis of information collected during its investigation, determines that there is “reasonable cause” to believe that the employer has engaged in an unlawful employment practice, does the matter assume the form of an adversary proceeding. Second, a charge does have a function in the enforcement procedure prescribed by Title VII. As explained above, the Commission is entitled to access only to evidence “relevant” to the charge under investigation. § 2000e-8. That limitation on the Commission’s investigative authority is not especially constraining. Since the enactment of Title VII, courts have generously construed the term “relevant” and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer. In 1972, Congress undoubtedly was aware of the manner in which the courts were construing the concept of “relevance” and implicitly endorsed it by leaving intact the statutory definition of the Commission’s investigative authority. On the other hand, Congress did not eliminate the relevance requirement, and we must be careful not to construe the regulation adopted by the EEOC governing what goes into a charge in a fashion that renders that requirement a nullity. Third, it is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired. By 1972, Congress was aware that employment discrimination was a “complex and pervasive” problem that could be extirpated only with thoroughgoing remedies; “[u]nrelenting broad-scale action against patterns or practices of discrimination” was essential if the purposes of Title VII were to be achieved. The EEOC, because “[i]t has access to the most current statistical computations and analyses regarding employment patterns” was thought to be in the best position “to determine where ‘pattern or practice’ litigation is warranted” and to pursue it. Accordingly, in its amendments to § 707, Congress made clear that Commissioners could file and the Commission could investigate such charges. Our interpretation of the EEOC’s regulations should not undercut the exercise of those powers. With these three considerations in mind, we must assess the proffered interpretations of the requirement embodied in § 1601.12(a)(3) that a Commissioner, when filing a “pattern- or-practice” charge, must state “the facts... constituting the alleged unlawful employment practices.” One reading of the crucial phrase would impose on the Commissioner a duty to specify the persons discriminated against, the manner in which they were injured, and the dates on which the injuries occurred. But such a construction of the regulation would radically limit the ability of the EEOC to investigate allegations of patterns and practices of discrimination. The Commission has developed a complex set of procedures for identifying employers who may be engaging in serious systemic discrimination. See EEOC Compliance Manual § 16 (1981). The Commission staff reviews the annual reports filed by employers with the EEOC and with the Office of Federal Contract Compliance Programs of the Department of Labor and combines those data with information garnered from other sources regarding employers’ practices. Id., §§ 16.3(a), (c). If the resulting composite picture of an employer’s practices matches one of a set of prescribed standards, the staff presents a report to a Commissioner, recommending that a charge be filed. Id., §§ 16.3(d), (e). If the Commissioner agrees with the recommendation, he files a sworn charge of systemic discrimination. At that stage of the inquiry, the Commissioner filing the charge has substantial reason, based upon statistical manifestations of the net effects of the employer’s practices, to believe that the employer has violated Title VII on a continuing basis. But the Commissioner rarely can identify any single instance of discrimination until the Commission has gained access to the employer’s personnel records. Thus, a requirement that the Commissioner in his charge identify the persons injured, when and how, would cut short most of these investigations. That result would be manifestly inconsistent with Congress’ intent. The Court of Appeals adopted a somewhat more moderate construction of the regulation. In that court’s view, § 1601.12(a)(3) requires a Commissioner to disclose some portion of the statistical data on which his allegations of systemic discrimination are founded. 676 F. 2d, at 325-326. This interpretation has little to recommend it. The data that undergird the Commissioner’s suspicions surely do not “constitute” the alleged unlawful employment practices; the Court of Appeals’ proposal is thus unsupported by the plain language of the regulation. More importantly, the court’s interpretation is sustained by none of the three pertinent legislative purposes. First, the Court of Appeals’ construction would, in effect, oblige the Commissioner to substantiate his allegations before the EEOC initiates an investigation, the purpose of which is to determine whether there is reason to believe those allegations are true. Such an obligation is plainly inconsistent with the structure of the enforcement procedure. Second, disclosure of the data on which the Commissioner’s allegations are based would in no way limit the range of materials to which the EEOC could demand access, because, under the statute, the Commission may insist that the employer disgorge any evidence relevant to the allegations of discrimination contained in the charge, regardless of the strength of the evidentiary foundation for those allegations. Third, the imposition on the EEOC of a duty to reveal the information that precipitated the charge would enable a recalcitrant employer, in a subpoena enforcement action, to challenge the adequacy of the Commission’s disclosures and to appeal an adverse ruling by the district court on that issue. The net effect would be to hamper significantly the Commission’s ability to investigate expeditiously claims of systemic discrimination. Rejection of the two proposals just discussed does not imply that a Commissioner should be permitted merely to allege that an employer has violated Title VII. Such a result would be inconsistent with the evident purpose of the regulation — to encourage complainants to identify with as much precision as they can muster the conduct complained of. And it would render nugatory the statutory limitation of the Commission’s investigative authority to materials “relevant” to a charge. With these concerns in mind, we think that the most sensible way of reading the prescription embodied in 29 CFR § 1601.12(a)(3) (1983) in the context of pattem-and-practice cases is as follows: Insofar as he is able, the Commissioner should identify the groups of persons that he has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected, and the periods of time in which he suspects the discrimination to have been practiced. The charge issued by Commissioner Norton, as amended, plainly satisfied the foregoing standards. The charge identified Negroes and women as the victims of respondent’s putative discriminatory practices. It specified six occupational categories to which Negroes had been denied equal access and seven categories to which women had been denied equal access. It alleged that respondent had engaged in discrimination in “recruitment, hiring, selection, job assignment, training, testing, promotion, and terms and conditions of employment.” And it charged respondent with engaging in these illegal practices since at least the effective date of the Civil Rights Act. We therefore conclude that the charge complied with the requirement embodied in §1601.12(a)(3) that a complainant must state “the facts... constituting the alleged unlawful employment practices.” C To make sense of the notice requirement, embodied in § 706(b), in the context of a charge filed by a Commissioner alleging a pattern or practice of discrimination, we must supplement the considerations discussed thus far with some additional principles and policies. Most importantly, we must strive to effectuate Congress’ purpose in incorporating into the statute the current notice provision. Though the legislative history is sparse, the principal objective of the provision seems to have been to provide employers fair notice that accusations of discrimination have been leveled against them and that they can soon expect an investigation by the EEOC. Prior to 1972, the EEOC had become prone to postponing until it was ready to begin an investigation the mandatory notification to the employer that charges were pending against it. In response to complaints regarding the unfairness of this practice, Congress adopted the present requirement that notice be given to an accused employer within 10 days of the filing of the charge. The requirement that the notice contain an indication of the “date, place and circumstances of the alleged unlawful employment practice” seems to have been designed to ensure that the employer was given some idea of the nature of the charge; the requirement was not envisioned as a substantive constraint on the Commission’s investigative authority. Respondent suggests that, despite the absence of supportive legislative history, we should infer from the structure of the statute, as amended, an intent on the part of Congress to use the notice requirement to limit the EEOC’s ability to investigate charges of discrimination. The purpose of the obligation to inform an employer of the “circumstances” of its alleged misconduct, respondent contends, is to force the EEOC “to state the factual basis for its charge,” and thereby to provide a reviewing court with an “objective verifiable method for determining whether [the Commission] ha[s] authority to investigate.” Brief for Respondent 30. Respondent’s proposed reconstruction of the reasoning that might have prompted Congress to adopt the notice provision is inconsistent with the pattern and purposes of the 1972 amendments to Title VII. At the same time it strengthened the notice provision, Congress eliminated the requirement that, before filing a charge, a Commissioner must have “reasonable cause” to believe a violation of Title VII had been committed. The only plausible explanation for that change is that Congress wished to place a Commissioner on the same footing as an aggrieved private party: neither was held to any prescribed level of objectively verifiable suspicion at the outset of the enforcement procedure. Rather, the determination whether there was any basis to their allegations of discrimination was to be postponed until after the Commission had completed its inquiries. It is highly unlikely that, having deliberately freed Commissioners from the duty to substantiate their suspicions before initiating investigations, Congress sub silentio reinstated that duty by requiring that employers be notified of the “circumstances” of their unlawful employment practices. Accordingly, we conclude that the specific purpose of the notice provision is to give employers fair notice of the existence and nature of the charges against them. Finally, in explicating the notice requirement, we must keep in view the more general objectives of Title VII as a whole. The dominant purpose of the Title, of course, is to root out discrimination in employment. But two other policies, latent in the statute, bear upon the problem before us. First, when it originally enacted Title VII, Congress hoped to encourage employers to comply voluntarily with the Act. That hope proved overly optimistic, and the recalcitrance of many employers compelled Congress in 1972 to strengthen the EEOC’s investigatory and enforcement powers. However, Congress did not abandon its wish that violations of the statute could be remedied without resort to the courts, as is evidenced by its retention in 1972 of the requirement that the Commission, before filing suit, attempt to resolve disputes through conciliation. See Ford Motor Co. v. EEOC, 458 U. S. 219, 228 (1982). Second, the statute contemplates that employers will create and retain personnel records pertinent to their treatment of women and members of minority groups. Both to assist the EEOC in policing compliance with the Act and to enable employers to demonstrate that they have adhered to its dictates, it is important that employers be given sufficient notice to ensure that documents pertaining to allegations of discrimination are not destroyed. See Occidental Life Insurance Co. v. EEOC, 432 U. S., at 372. With these considerations in mind, we turn to an assessment of the competing interpretations of the notice provision. It would be possible to read the requirement that the employer be told of “the date, place and circumstances of the alleged unlawful employment practice” as compelling a specification of the persons discriminated against, the dates the alleged discrimination occurred, and the manner in which it was practiced. We reject that construction for the same reason we rejected an analogous reading of 29 CFR § 1601.12 (a)(3) (1983) pertaining to the contents of charges: it would drastically limit the ability of the Commission to investigate allegations of systemic discrimination, and therefore would be plainly inconsistent with Congress’ intent. See supra, at 70-71. A more moderate construction of § 706(b) would require the Commission to include in the notice given to the employer the same information that 29 CFR § 1601.12(a)(3) (1983) (as we have now construed it) presently requires to be included in a charge alleging a pattern or practice of discrimination. See supra, at 72-73. That interpretation of the statutory requirement	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
NORTHBROOK NATIONAL INSURANCE CO. v. BREWER No. 88-995. Argued October 4, 1989 Decided November 7, 1989 MARSHALL, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 13. P. Michael Jung argued the cause for petitioner. With him on the briefs was E. Thomas Bishop. Timothy M. Fults argued the cause and filed a brief for respondent. Michael A. Carvin and Craig Berrington filed a brief for the American Insurance Association as amicus curiae, urging reversal. Justice Marshall delivered the opinion of the Court. This case presents the question whether the “direct action” proviso of 28 U. S. C. § 1332(c) (1982 ed.) — which provides that in a direct action against a liability insurer, the insurer shall be deemed a citizen of the same State as the insured for purposes of diversity jurisdiction — applies to a workers’ compensation action brought in federal court by an insurer. The Fifth Circuit held that the proviso applied so as to bar a diversity action brought by an Illinois insurer of a Texas corporation against a Texas employee. 854 F. 2d 742 (1988). Accordingly, it affirmed the District Court’s dismissal for lack of subject-matter jurisdiction. Because the language of the proviso is unambiguously limited to actions brought against insurers, we reverse. h-H Respondent Larry Brewer is a Texas citizen and an employee of Whitmire Line Clearance, Inc., a Texas corporation. Petitioner Northbrook National Insurance Company, an Illinois corporation with its principal place of business in that State, was Whitmire’s workers’ compensation insurer. Under the Texas Workers’ Compensation Act, an employee who suffers an injury in the course of employment “shall have no right of action against [the] employer . . . but . . . shall look for compensation solely to the [employer’s insurer].” Tex. Rev. Civ. Stat. Ann., Art. 8306, §3(a) (Vernon Supp. 1989). An employee must file his claim for compensation with the Texas Industrial Accident Board. Art. 8307, § 4a. Brewer filed a workers’ compensation claim against North-brook after he allegedly suffered an injury during the course of his employment. The board processed his claim and awarded him compensation. Texas’ workers’ compensation law permits any party dissatisfied with a board ruling to bring a civil suit to set the decision aside. Art. 8307, § 5. The court determines the issues de novo, and the party seeking compensation bears the burden of proof, regardless of which party prevailed before the board. Ibid. Northbrook filed suit against Brewer in Federal District Court, invoking the court’s diversity jurisdiction under 28 U. S. C. § 1332 (1982 ed.). The District Court dismissed for lack of subject-matter jurisdiction, holding that Fifth Circuit precedent, Campbell v. Insurance Co. of North America, 552 F. 2d 604 (1977) (per curiam), required it to apply the direct action proviso of the diversity statute. App. to Pet. for Cert. A-ll. That proviso states: “[I]n any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. § 1332(c) (1982 ed.) (emphasis added). The District Court therefore attributed Whitmire’s Texas citizenship to Northbrook, eliminating diversity between Northbrook and Brewer. The Court of Appeals affirmed on the basis of Campbell. It noted, however, that Campbell stood on “weak jurisprudential legs.” 854 F. 2d, at 745. HH We hold that the direct action proviso is not applicable m this case because Northbrook’s suit was an action by, not against, an insurer. “[W]e must take the intent of Congress with regard to the filing of diversity cases in Federal District Courts to be that which its language clearly sets forth.” Horton v. Liberty Mutual Ins. Co., 367 U. S. 348, 352 (1961) (holding that Congress’ elimination of removal jurisdiction over workers’ compensation suits did not withdraw original diversity jurisdiction over such suits). The language of the proviso could not be more clear. It applies only to actions against insurers; it does not mention actions by insurers. The proviso’s legislative history reinforces our reading of Congress’ pellucid language. Congress added the proviso to § 1332(c) in 1964 in response to a sharp increase in the caseload of Federal District Courts in Louisiana resulting largely from that State’s adoption of a direct action statute, La. Rev. Stat. Ann. §22.655 (West 1959). See S. Rep. No. 1308, 88th Cong., 2d Sess., 4 (1964); H. R. Rep. No. 1229, 88th Cong., 2d Sess., 4 (1964). The Louisiana statute permitted an injured party to sue the tortfeasor’s insurer directly without joining the tortfeasor as a defendant. Its effect was to create diversity jurisdiction in cases in which both the tortfeasor and the injured party were residents of Louisiana, but the tortfeasor’s insurer was considered a resident of another State. Believing that such suits did “not come within the spirit or the intent of the basic purpose of the diversity jurisdiction of the Federal judicial system,” S. Rep. No. 1308, supra, at 7, Congress enacted the proviso “to eliminate under the diversity jurisdiction of the U. S. district courts, suits on certain tort claims in which both parties are local residents, but which, under a State ‘direct action’ statute, may be brought directly against a foreign insurance carrier without joining the local tort-feasor as a defendant,” id., at 1 (emphasis added). See also H. R. Rep. No. 1229, supra, at 1. Nowhere in the legislative history did Congress express any concern about diversity actions filed by insurance carriers. The Fifth Circuit in Campbell reasoned that a suit such as Northbrook’s is, in context, actually an action against the insurer. The court noted that the entire process is initiated by the employee’s filing a claim with the board, and that the employee retains the burden of proof at trial. It also considered the insurer’s action in court merely an “appeal” of the board award. 552 F. 2d, at 605. We reject this analysis. Although the employee in an action brought by the insurer retains some characteristics of a plaintiff at trial, such an action is still inescapably one by, not against, the insurer. The action is commenced when the insurer files a complaint in federal court, not when the employee files his claim before the board. See Fed. Rule Civ. Proc. 3 (“A civil action is commenced by filing a complaint with the court”). Moreover, once the court acquires jurisdiction over the suit, the board’s award is vacated and no longer has any force or significance. Latham v. Security Ins. Co. of Hartford, 491 S. W. 2d 100, 104 (Tex.1972). See also Horton, supra, at 355, n. 15 (“This makes it all the more clear that the matter in controversy between the parties to the suit is not merely whether the award will be set aside since the suit automatically sets it aside for determination of liability de novo”). Thus, this Court concluded in Horton that such actions are not considered appeals under Texas law. 367 U. S., at 354 (citing Booth v. Texas Employers’ Ins. Assn., 132 Tex. 237, 246, 123 S. W. 2d 322, 328 (1938)). The Campbell court also reasoned that the same policy considerations that apply to actions brought by resident employees apply to actions brought by out-of-state insurers; thus, the court stated that it would be unfair to provide those insurers access to federal courts while denying such access to employees. 552 F. 2d, at 605. Petitioner argues, however, that Campbell ignored a crucial difference between the two situations that justifies different treatment. Absent federal jurisdiction, a workers’ compensation action would be brought in a Texas state court, regardless of which party initiated it. Tex. Rev. Civ. Stat. Ann., Art. 8307a (Vernon Supp. 1989) (suit must be brought in county in which injury occurred or in which employee resided at the time of injury). Thus, the out-of-state insurer, unlike the resident employee, would, “at least in theory, be subject to a local prejudice in favor of the injured resident.” Aetna Casualty & Surety Ins. Co. v. Greene, 606 F. 2d 123, 127 (CA6 1979) (rejecting Campbell’s approach). Petitioner’s position is not wholly convincing. Although it may explain why Congress would permit out-of-state insurers, but not injured state residents, to sue in federal court, it does not explain why Congress would deny those insurers access to a federal forum when injured residents initiate suit in state court. By eliminating diversity jurisdiction over direct actions against out-of-state insurers, Congress also prevented those insurers from removing such actions to federal courts, because federal removal jurisdiction is limited to actions which could have been brought originally in federal courts. See 28 U. S. C. § 1441(a) (1982 ed.). Yet it is difficult to see how the nonresident insurer’s interest in a federal forum is any greater when it brings the action than when an injured resident does. It therefore seems somewhat anomalous for Congress to retain original diversity jurisdiction over actions by out-of-state insurers while withdrawing removal jurisdiction. This seeming incongruity, however, is insufficient to persuade us to extend the scope of Congress’ precise wording in § 1332(c). In Horton, this Court confronted a similar question: whether Congress’ explicit withdrawal of removal jurisdiction over workers’ compensation cases, see n. 2, supra, precluded a diversity action brought in the first instance by an out-of-state insurer under the Texas workers’ compensation statute. The District Court had answered that question in the affirmative, reasoning that the concerns that persuaded Congress to eliminate removal jurisdiction — reducing congestion in federal courts and relieving injured employees of the burden of having to litigate in more distant federal courts — were also applicable when nonresident insurers initiated the actions. 367 U. S., at 351-352. Although this Court noted that these considerations were “appealing,” id., at 352, it refused to assume that Congress intended anything more than it had stated in unambiguous terms. Ibid. Similarly, we refuse to attribute to Congress an intent broader than that specifically expressed in the direct action proviso. Congress could easily have used language to bar suits by insurers as well as those against insurers, and it can easily do so still. See ibid. In sum, the direct action proviso is limited by its terms to actions against insurers. We cannot doubt that Congress meant what it said. We therefore reverse the decision of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. Petitioner also argues that the proviso is inapplicable because this ease does not involve a “direct action” within the meaning of § 1332(c). A direct action, according to petitioner, is a suit in which a party claiming injury seeks relief from the liability insurer of the party legally responsible for the injury; in such an action, the injured party neither joins nor first obtains a judgment against the legally responsible party. Petitioner contends that a workers’ compensation suit against an employer’s insurer is not a direct action in Texas because employers are not legally responsible for workers’ compensation benefits under Texas law. Tex. Rev. Civ. Stat. Ann., Art. 8306, § 3(a) (Vernon Supp. 1989). Instead, the injured party must “look for compensation solely to the [insurer].” Ibid. Similarly, because Texas employers are not liable for workers’ compensation benefits, petitioner asserts, Whitmire’s policy with Northbrook did not provide “liability insurance” within the meaning of the proviso. We need not reach these arguments because we hold that the suit at issue here was not an action “against” an insurer. In this ease, removal would also be precluded by 28 U. S. C. § 1445(c) (1982 ed.) which states: “A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.”	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
NATIONAL RAILROAD PASSENGER CORPORATION v. MORGAN No. 00-1614. Argued January 9, 2002 Decided June 10, 2002 Thomas, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined as to Part II-A. O’Connor, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, C. J., joined, in which Scalia and Kennedy, JJ., joined as to all but Part I, and in which Breyer, J., joined as to Part I, post, p. 123. Roy T Englert, Jr., argued the cause for petitioner. With him on the briefs was Melissa B. Rogers. Pamela Y. Price argued the cause for respondent. With her on the brief were Howard J. Moore, Jr., and William McNeill III. Austin C. Schlick argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, Mar-leigh D. Dover, and John C. Hoyle. Katherine Y. K. Cheung, Ann Elizabeth Reesman, Stephen A Bokat, and Robin S. Conrad filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Impact Fund et al. by Ellen Lake, Brad Seligman, and Jocelyn D. Larkin; for the NAACP Legal Defense and Educational Fund, Inc., by Robert H. Stroup, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Coitt, and Eric Schnapper; for the Lawyers’ Committee for Civil Rights Under Law et al. by Thomas J Henderson, John A. Payton, Gary T. Johnson, Norman Redlich, Barbara R. Arnwine, Dennis Courtland Hayes, Marcia D. Greenberger, Judith L. Lichtman, Marc Stern, and Paula A. Brantner. Justice Thomas delivered the opinion of the Court. Respondent Abner Morgan, Jr., sued petitioner National Railroad Passenger Corporation (Amtrak) under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., alleging that he had been subjected to discrete discriminatory and retaliatory acts and had experienced a racially hostile work environment throughout his employment. Section 2000e-5(e)(l) requires that a Title VII plaintiff file a charge with the Equal Employment Opportunity Commission (EEOC) either 180 or 300 days “after the alleged unlawful employment practice occurred.” We consider whether, and under what circumstances, a Title VII plaintiff may file suit on events that fall outside this statutory time period. The United States Court of Appeals for the Ninth Circuit held that a plaintiff may sue on claims that would ordinarily be time barred so long as they either are “sufficiently related” to incidents that fall within the statutory period or are part of a systematic policy or practice of discrimination that took place, at least in part, within the limitations period. We reverse in part and affirm in part. We hold that the statute precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period. We also hold that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period. The application of equitable doctrines, however, may either limit or toll the time period within which an employee must file a charge. I On February 27, 1995, Abner J. Morgan, Jr., a black male, filed a charge of discrimination and retaliation against Amtrak with the EEOC and cross-filed with the California Department of Fair Employment and Housing. Morgan alleged that during the time period that he worked for Amtrak he was “consistently harassed and disciplined more harshly than other employees on account of his race.” App. to Pet. for Cert. 25a. The EEOC issued a “Notice of Right to Sue” on July 8, 1996, and Morgan filed this lawsuit on October 2, 1996. While some of the allegedly discriminatory acts about which Morgan complained occurred within 300 days of the time that he filed his charge with the EEOC, many took place prior to that time period. Amtrak filed a motion, arguing, among other things, that it was entitled to summary judgment on all incidents that occurred more than 300 days before the filing of Morgan’s EEOC charge. The District Court granted summary judgment in part to Amtrak, holding that the company could not be liable for conduct occurring before May 3,1994, because that conduct fell outside of the 300-day filing period. The court employed a test established by the United States Court of Appeals for the Seventh Circuit in Galloway v. General Motors Service Parts Operations, 78 F. 3d 1164 (1996): A “plaintiff may not base [the] suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations.” Id., at 1167. The District Court held that “[because Morgan believed that he was being discriminated against at the time that all of these acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on these claims ran.” App. to Pet. for Cert. 40a. Morgan appealed. The United States Court of Appeals for the Ninth Circuit reversed, relying on its previous articulation of the continuing violation doctrine, which “allows courts to consider conduct that would ordinarily be time barred ‘as long as the untimely incidents represent an ongoing unlawful employment practice.’” 232 F. 3d 1008, 1014 (2000) (quoting Anderson v. Reno, 190 F. 3d 930, 936 (CA9 1999)). Contrary to both the Seventh Circuit’s test, used by the District Court, and a similar test employed by the Fifth Circuit, the Ninth Circuit held that its precedent “precludes such a notice limitation on the continuing violation doctrine.” 232 F. 3d, at 1015. In the Ninth Circuit’s view, a plaintiff can establish a continuing violation that allows recovery for claims filed outside of the statutory period in one of two ways. First, a plaintiff may show “a series of related acts one or more of which are within the limitations period.” Ibid. Such a “serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period.” Ibid. The alleged incidents, however, “cannot be isolated, sporadic, or discrete.” Ibid. Second, a plaintiff may establish a continuing violation if he shows “a systematic policy or practice of discrimination that operated, in part, within the limitations period — a systemic violation.” Id., at 1015-1016. To survive summary judgment under this test, Morgan had to “raise a genuine issue of disputed fact as to (1) the existence of a continuing violation — be it serial or systemic,” and (2) the continuation of the violation into the limitations period. Id., at 1016. Because Morgan alleged three types of Title VII claims, namely, discrimination, hostile environment, and retaliation, the Court of Appeals considered the allegations with respect to each category of claim separately and found that the prelimitations conduct was sufficiently related to the postlimitations conduct to invoke the continuing violation doctrine for all three. Therefore, “[i]n light of the relatedness of the incidents, [the Court of Appeals found] that Morgan ha[d] sufficiently presented a genuine issue of disputed fact as to whether a continuing violation existed.” Id., at 1017. Because the District Court should have allowed events occurring in the prelimitations period to be “presented to the jury not merely as background information, but also for purposes of liability,” id., at 1017-1018, the Court of Appeals reversed and remanded for a new trial. We granted certiorari, 533 U. S. 927 (2001), and now reverse in part and affirm in part. II The Courts of Appeals have taken various approaches to the question whether acts that fall outside of the statutory-time period for filing charges set forth in 42 U. S. C. § 2000e-5(e) are actionable under Title VII. See n. 3, supra. While the lower courts have offered reasonable, albeit divergent, solutions, none are compelled by the text of the statute. In the context of a request to alter the timely filing requirements of Title VII, this Court has stated that “strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U. S. 807, 826 (1980). In Mohasco, the Court rejected arguments that strict adherence to a similar statutory time restriction for filing a charge was “unfair” or that “a less literal reading of the Act would adequately effectuate the policy of deferring to state agencies.” Id., at 824-825. Instead, the Court noted that “[b]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.” Id., at 825. Similarly here, our most salient source for guidance is the statutory text. Title 42 U. S. C. § 2000e-5(e)(l) is a charge filing provision that “specifies with precision” the prerequisites that a plaintiff must satisfy before filing suit. Alexander v. Gardner-Denver Co., 415 U. S. 36, 47 (1974). An individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made. In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days. A claim is time barred if it is not filed within these time limits. For our purposes, the critical sentence of the charge filing provision is: “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. ” § 2000e-5(e)(l) (emphasis added). The operative terms are “shall,” “after... occurred,” and “unlawful employment practice.” “[S]hall” makes the act of filing a charge within the specified time period mandatory. See, e. g., Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (“[T]he mandatory ‘shall,’... normally creates an obligation impervious to judicial discretion”). “[Ojccurred” means that the practice took place or happened in the past. The requirement, therefore, that the charge be filed “after” the practice “occurred” tells us that a litigant has up to 180 or 300 days after the unlawful practice happened to file a charge with the EEOC. The critical questions, then, are: What constitutes an “unlawful employment practice” and when has that practice “occurred”? Our task is to answer these questions for both discrete discriminatory acts and hostile work environment claims. The answer varies with the practice. A We take the easier question first. A discrete retaliatory or discriminatory act “occurred” on the day that it “happened.” A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it. Morgan argues that the statute does not require the filing of a charge within 180 or 300 days of each discrete act, but that the language requires the filing of a charge within the specified number of days after an “unlawful employment practice.” “Practice,” Morgan contends, connotes an ongoing violation that can endure or recur over a period of time. See Brief for Respondent 25-26. In Morgan’s view, the term “practice” therefore provides a statutory basis for the Ninth Circuit’s continuing violation doctrine. This argument is unavailing, however, given that 42 U. S. C. §2000e-2 explains in great detail the sorts of actions that qualify as “[u]nlawful employment practices” and includes among such practices numerous discrete acts. See, e. g., § 2000e-2(a) (“It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin..There is simply no indication that the term “practice” converts related discrete acts into a single unlawful practice for the purposes of timely filing. Cf. §2000e-6(a) (providing that the Attorney General may bring a civil action in “pattern or practice” cases). We have repeatedly interpreted the term “practice” to apply to a discrete act or single “occurrence,” even when it has a connection to other acts. For example, in Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229, 234 (1976), an employee asserted that his complaint was timely filed because the date “the alleged unlawful employment practice occurred” was the date after the conclusion of a grievance arbitration procedure, rather than the earlier date of his discharge. The discharge, he contended, was “tentative” and “nonfinal” until the grievance and arbitration procedure ended. Not so, the Court concluded, because the discriminatory act occurred on the date of discharge — the date that the parties understood the termination to be final. Id., at 284-235. Similarly, in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), a pattern-or-practice ease, when considering a discriminatory salary structure, the Court noted that although the salary discrimination began prior to the date that the act was actionable under Title VII, “[e]ach week’s paycheck that delivered] less to a black than to a similarly situated white is a wrong actionable under Title VII... Id., at 395. This Court has also held that discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period. In United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977), United forced Evans to resign after she married because of its policy against married female flight attendants. Although Evans failed to file a timely charge following her initial separation, she nonetheless claimed that United was guilty of a present, continuing violation of Title VII because its seniority system failed to give her credit for her prior service once she was rehired. The Court disagreed, concluding that “United was entitled to treat [Evans’ resignation] as lawful after [she] failed to file a charge of discrimination within the” charge filing period then allowed by the statute. Id., at 558. At the same time, however, the Court noted that “[i]t may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue.” Ibid. The emphasis, however, “should not be placed on mere continuity” but on “whether any present violation exist[ed].” Ibid, (emphasis in original). In Delaware State College v. Ricks, 449 U. S. 250 (1980), the Court evaluated the timeliness of an EEOC complaint filed by a professor who argued that he had been denied academic tenure because of his national origin. Following the decision to deny tenure, the employer offered him a “‘terminal’” contract to teach an additional year. Id., at 253. Claiming, in effect, a “ ‘continuing violation,’ ” the professor argued that the time period did not begin to run until his actual termination. Id., at 257. The Court rejected this argument: “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Ibid. In order for the time period to commence with the discharge, “he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment.” Ibid. He could not use a termination that fell within the limitations period to pull in the time-barred discriminatory act. Nor could a time-barred act justify filing a charge concerning a termination that was not independently discriminatory. We derive several principles from these cases. First, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. As we have held, however, this time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. See Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982) (“We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”). Cburts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly. See Baldwin County Welcome Center v. Brown, 466 U. S. 147, 152 (1984) (per curiam) (“Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants”). The Court of Appeals applied the continuing violations doctrine to what it termed “serial violations,” holding that so long as one act falls within the charge filing period, discriminatory and retaliatory acts that are plausibly or sufficiently related to that act may also be considered for the purposes of liability. See 232 F. 3d, at 1015. With respect to this holding, therefore, we reverse. Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” Morgan can only file a charge to cover discrete acts that “occurred” within the appropriate time period. While Morgan alleged that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through March 3, 1995, the date that he was fired, only incidents that took place within the timely filing period are actionable. Because Morgan first filed his charge with an appropriate state agency, only those acts that occurred 300 days before February 27, 1995, the day that Morgan filed his charge, are actionable. During that time period, Morgan contends that he was wrongfully suspended and charged with a violation of Amtrak’s “Rule L” for insubordination while failing to complete work assigned to him, denied training, and falsely accused of threatening a manager. Id., at 1013. All prior discrete discriminatory acts are untimely filed and no longer actionable. B Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed. 1996) (hereinafter Lindemann) (“The repeated nature of the harassment or its intensity constitutes evidence that management knew or should have known of its existence”). The “unlawful employment practice” therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (“As we pointed out in Meritor [Savings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986),] ‘mere utterance of an... epithet which engenders offensive feelings in a[n] employee,’ ibid, (internal quotation marks omitted), does not sufficiently affect the conditions of employment to implicate Title VII”). Such claims are based on the cumulative effect of individual acts. “We have repeatedly made clear that although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition ‘is not limited to “economic” or “tangible” discrimination,’ Harris, [510 U. S., at 21] (quoting Meritor Savings Bank, FSB v. Vinson, [477 U. S.,] at 64), and that it covers more than ‘terms’ and ‘conditions’ in the narrow contractual sense.” Faragher v. Boca Raton, 524 U. S. 775, 786 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 78 (1998)). As the Court stated in Harris, “[t]he phrase ‘terms, conditions, or privileges of employment’ [of 42 U. S. C. § 2000e-2(a)(l)] evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment, which includes requiring people to work in a discrimi-natorily hostile or abusive environment.” 510 U. S., at 21 (some internal quotation marks omitted) (quoting Meritor, 477 U. S., at 64, in turn quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 707, n. 13 (1978)). “Workplace conduct is not measured in isolation....” Clark County School Dist. v. Breeden, 532 U. S. 268, 270 (2001) (per curiam). Thus, “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated.” Harris, 510 U. S., at 21 (citations omitted). In determining whether an actionable hostile work environment claim exists, we look to “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id., at 23. To assess whether a court may, for the purposes of determining liability, review all such conduct, including those acts that occur outside the filing period, we again look to the statute. It provides that a charge must be filed within 180 or 300 days “after the alleged unlawful employment practice occurred.” A hostile work environment claim is composed of a series of separate acts that collectively constitute one “unlawful employment practice.” 42 U. S. C. § 2000e-5(e)(l). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened.. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability. That act need not, however, be the last act. As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has “occurred,” even if it is still occurring.. Subsequent events, however, may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole. It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct. The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability. And the statute does not contain a requirement that the employee file a charge prior to 180 or 300 days “after” the single unlawful practice “occurred.” Given, therefore, that the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment. The following scenarios illustrate our point: (1) Acts on days 1-400 create a hostile work environment. The employee files the charge on day 401. Can the employee recover for that part of the hostile work environment that occurred in the first 100 days? (2) Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts between days 101-400. Can the act occurring on day 401 pull the other acts in for the purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one “unlawful employment practice” and it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts, at least not by reference to the day 401 act. Our conclusion with respect to the incidents that may be considered for the purposes of liability is reinforced by the fact that the statute in no way bars a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge. Morgan correctly notes that the timeliness requirement does not dictate the amount of recoverable damages. It is but one in a series of provisions requiring that the parties take action within specified time periods, see, e. g., §§2000e-5(b), (c), (d), none of which function as specific limitations on damages. Explicit limitations on damages are found elsewhere in the statute. Section 1981a(b)(3), for example, details specific limitations on compensatory and punitive damages. Likewise, § 2000e-5(g)(l) allows for recovery of backpay liability for up to two years prior to the filing of the charge. If Congress intended to limit liability to conduct occurring in the period within which the party must file the charge, it seems unlikely that Congress would have allowed recovery for two years of backpay. And the fact that Congress expressly limited the amount of recoverable damages elsewhere to a particular time period indicates that the timely filing provision was not meant to serve as a specific limitation either on damages or the conduct that may be considered for the purposes of one actionable hostile work environment claim. It also makes little sense to limit the assessment of liability in a hostile work environment claim to the conduct that falls within the 180- or 300-day period given that this time period varies based on whether the violation occurs in a State or political subdivision that has an agency with authority to grant or seek relief. It is important to remember that the statute requires that a Title VII plaintiff must wait 60 days after proceedings have commenced under state or local law to file a charge with the EEOC, unless such proceedings have earlier terminated. §2000e-5(c). In such circumstances, however, the charge must still be filed within 300 days of the occurrence. See Mohasco, 447 U. S., at 825-826. The extended time period for parties who first file such charges in a State or locality ensures that employees are neither time barred from later filing their charges with the EEOC nor dissuaded from first filing with a state agency. See id., at 821 (“The history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated”). Surely, therefore, we cannot import such a limiting principle into the provision where its effect would be to make the reviewable time period for liability dependent upon whether an employee lives in a State that has its own remedial scheme. Simply put, § 2000e-5(e)(l) is a provision specifying when a charge is timely filed and only has the consequence of limiting liability because filing a timely charge is a prerequisite to having an actionable claim. A court’s task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period. With respect to Morgan’s hostile environment claim, the Court of Appeals concluded that “the pre- and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.” 232 F. 3d, at 1017. To support his claims of a hostile environment, Morgan presented evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets. Id., at 1013. Although many of the acts upon which his claim depends occurred outside the 300 day	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
DIRKS v. SECURITIES AND EXCHANGE COMMISSION No. 82-276. Argued March 21, 1983 — Decided July 1, 1983 David Bonderman argued the cause for petitioner. With him on the briefs were Lawrence A. Schneider and Eric Summergrad. Paul Gonson argued the cause for respondent. With him on the brief were Daniel L. Goelzer, Jacob H. Stillman, and Whitney Adams. Solicitor General Lee, Assistant Attorney General Jensen, Stephen M. Shapiro, Deputy Assistant Attorney General Olsen, David A. Strauss, and Geoffrey S. Stewart filed a brief for the United States as amicus curiae urging reversal. Edward H. Fleischman, Richard E. Nathan, Martin P. Unger, and William J. Fitzpatrick filed a brief for the Securities Industry Association as amicus curiae. Justice Powell delivered the opinion of the Court. Petitioner Raymond Dirks received material nonpublic information from “insiders” of a corporation with which he had no connection. He disclosed this information to investors who relied on it in trading in the shares of the corporation. The question is whether Dirks violated the antifraud provisions of the federal securities laws by this disclosure. I In 1973, Dirks was an officer of a New York broker-dealer firm who specialized in providing investment analysis of insurance company securities to institutional investors. On March 6, Dirks received information from Ronald Secrist, a former officer of Equity Funding of America. Secrist alleged that the assets of Equity Funding, a diversified corporation primarily engaged in selling life insurance and mutual funds, were vastly overstated as the result of fraudulent corporate practices. Secrist also stated that various regulatory agencies had failed to act on similar charges made by Equity Funding employees. He urged Dirks to verify the fraud and disclose it publicly. Dirks decided to investigate the allegations. He visited Equity Funding’s headquarters in Los Angeles and interviewed several officers and employees of the corporation. The senior management denied any wrongdoing, but certain corporation employees corroborated the charges of fraud. Neither Dirks nor his firm owned or traded any Equity Funding stock, but throughout his investigation he openly discussed the information he had obtained with a number of clients and investors. Some of these persons sold their holdings of Equity Funding securities, including five investment advisers who liquidated holdings of more than $16 million. While Dirks was in Los Angeles, he was in touch regularly with William Blundell, the Wall Street Journal’s Los Angeles bureau chief. Dirks urged Blundell to write a story on the fraud allegations. Blundell did not believe, however, that such a massive fraud could go undetected and declined to write the story. He feared that publishing such damaging hearsay might be libelous. During the 2-week period in which Dirks pursued his investigation and spread word of Secrist’s charges, the price of Equity Funding stock fell from $26 per share to less than $15 per share. This led the New York Stock Exchange to halt trading on March 27. Shortly thereafter California insurance authorities impounded Equity Funding’s records and uncovered evidence of the fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against Equity Funding and only then, on April 2, did the Wall Street Journal publish a front-page story based largely on information assembled by Dirks. Equity Funding immediately went into receivership. The SEC began an investigation into Dirks’ role in the exposure of the fraud. After a hearing by an Administrative Law Judge, the SEC found that Dirks had aided and abetted violations of § 17(a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U. S. C. §77q(a), § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. §78j(b), and SEC Rule 10b-5, 17 CFR §240.10b-5 (1983), by repeating the allegations of fraud to members of the investment community who later sold their Equity Funding stock. The SEC concluded: “Where ‘tippees’ — regardless of their motivation or occupation — come into possession of material ‘corporate information that they know is confidential and know or should know came from a corporate insider,’ they must either publicly disclose that information or refrain from trading.” 21 S. E. C. Docket 1401, 1407 (1981) (footnote omitted) (quoting Chiarella v. United States, 445 U. S. 222, 230, n. 12 (1980)). Recognizing, however, that Dirks “played an important role in bringing [Equity Funding’s] massive fraud to light,” 21 S. E. C. Docket, at 1412, the SEC only censured him. Dirks sought review in the Court of Appeals for the District of Columbia Circuit. The court entered judgment against Dirks “for the reasons stated by the Commission in its opinion.” App. to Pet. for Cert. C-2. Judge Wright, a member of the panel, subsequently issued an opinion. Judge Robb concurred in the result and Judge Tamm dissented; neither filed a separate opinion. Judge Wright believed that “the obligations of corporate fiduciaries pass to all those to whom they disclose their information before it has been disseminated to the public at large.” 220 U. S. App. D. C. 309, 324, 681 F. 2d 824, 839 (1982). Alternatively, Judge Wright concluded that, as an employee of a broker-dealer, Dirks had violated “obligations to the SEC and to the public completely independent of any obligations he acquired” as a result of receiving the information. Id., at 325, 681 F. 2d, at 840. In view of the importance to the SEC and to the securities industry of the question presented by this case, we granted a writ of certiorari. 459 U. S. 1014 (1982). We now reverse. H-H I — I In the seminal case of In re Cady, Roberts & Co., 40 S. E. C. 907 (1961), the SEC recognized that the common law in some jurisdictions imposes on “corporate ‘insiders,’ particularly officers, directors, or controlling stockholders” an “affirmative duty of disclosure... when dealing in securities.” Id., at 911, and n. 13. The SEC found that not only did breach of this common-law duty also establish the elements of a Rule 10b-5 violation, but that individuals other than corporate insiders could be obligated either to disclose material nonpublic information before trading or to abstain from trading altogether. Id., at 912. In Chiarella, we accepted the two elements set out in Cady, Roberts for establishing a Rule 10b-5 violation: “(i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure.” 445 U. S., at 227. In examining whether Chiarella had an obligation to disclose or abstain, the Court found that there is no general duty to disclose before trading on material nonpublic information, and held that “a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information.” Id., at 235. Such a duty arises rather from the existence of a fiduciary relationship. See id., at 227-235. Not “all breaches of fiduciary duty in connection -with a securities transaction,” however, come within the ambit of Rule 10b-5. Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 472 (1977). There must also be “manipulation or deception.” Id., at 473. In an inside-trading case this fraud derives from the “inherent unfairness involved where one takes advantage” of “information intended to be available only for a corporate purpose and not for the personal benefit of anyone.” In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S. E. C. 933, 936 (1968). Thus, an insider will be liable under Rule 10b-5 for inside trading only where he fails to disclose material nonpublic information before trading on it and thus makes “secret profits.” Cady, Roberts, supra, at 916, n. 31. Ill We were explicit in Chiarella in saying that there can be no duty to disclose where the person who has traded on inside information “was not [the corporation’s] agent,... was not a fiduciary, [or] was not a person in whom the sellers [of the securities] had placed their trust and confidence.” 445 U. S., at 232. Not to require such a fiduciary relationship, we recognized, would “depar[t] radically from the established doctrine that duty arises from a specific relationship between two parties” and would amount to “recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information.” Id., at 232, 233. This requirement of a specific relationship between the shareholders and the individual trading on inside information has created analytical difficulties for the SEC and courts in policing tippees who trade on inside information. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships. In view of this absence, it has been unclear how a tippee acquires the Cady, Roberts duty to refrain from trading on inside information. A The SEC’s position, as stated in its opinion in this case, is that a tippee “inherits” the Cady, Roberts obligation to shareholders whenever he receives inside information from an insider: “In tipping potential traders, Dirks breached a duty which he had assumed as a result of knowingly receiving confidential information from [Equity Funding] insiders. Tippees such as Dirks who receive non-public, material information from insiders become ‘subject to the same duty as [the] insiders. ’ Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc. [495 F. 2d 228, 237 (CA2 1974) (quoting Ross v. Licht, 263 F. Supp. 395, 410 (SDNY 1967))]. Such a tippee breaches the fiduciary duty which he assumes from the insider when the tippee knowingly transmits the information to someone who will probably trade on the basis thereof.... Presumably, Dirks’ informants were entitled to disclose the [Equity Funding] fraud in order to bring it to light and its perpetrators to justice. However, Dirks — standing in their shoes — committed a breach of the fiduciary duty which he had assumed in dealing with them, when he passed the information on to traders.” 21 S. E. C. Docket, at 1410, n. 42. This view differs little from the view that we rejected as inconsistent with congressional intent in Chiarella. In that case, the Court of Appeals agreed with the SEC and affirmed Chiarella’s conviction, holding that “[ajnyone — corporate insider or not — who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose.” United States v. Chiarella, 588 F. 2d 1358, 1365 (CA2 1978) (emphasis in original). Here, the SEC maintains that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading. In effect, the SEC’s theory of tippee liability in both cases appears rooted in the idea that the antifraud provisions require equal information among all traders. This conflicts with the principle set forth in Chiarella that only some persons, under some circumstances, will be barred from trading while in possession of material nonpublic information. Judge Wright correctly read our opinion in Chiarella as repudiating any notion that all traders must enjoy equal information before trading: “[T]he ‘information’ theory is rejected. Because the disclose-or-refrain duty is extraordinary, it attaches only when a party has legal obligations other than a mere duty to comply with the general antifraud proscriptions in the federal securities laws.” 220 U. S. App. D. C., at 322, 681 F. 2d, at 837. See Chiarella, 445 U. S., at 235, n. 20. We reaffirm today that “[a] duty [to disclose] arises from the relationship between parties... and not merely from one’s ability to acquire information because of his position in the market.” Id., at 231-232, n. 14. Imposing a duty to disclose or abstain solely because a person knowingly receives material nonpublic information from an insider and trades on it could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market. It is commonplace for analysts to “ferret out and analyze information,” 21 S. E. C. Docket, at 1406, and this often is done by meeting with and questioning corporate officers and others who are insiders. And information that the analysts obtain normally may be the basis for judgments as to the market worth of a corporation’s securities. The analyst’s judgment in this respect is made available in market letters or otherwise to clients of the firm. It is the nature of this type of information, and indeed of the markets themselves, that such information cannot be made simultaneously available to all of the corporation’s stockholders or the public generally. B The conclusion that recipients of inside information do not invariably acquire a duty to disclose or abstain does not mean that such tippees always are free to trade on the information. The need for a ban on some tippee trading is clear. Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain. See 15 U. S. C. § 78t(b) (making it unlawful to do indirectly “by means of any other person” any act made unlawful by the federal securities laws). Similarly, the transactions of those who knowingly participate with the fiduciary in such a breach are “as forbidden” as transactions “on behalf of the trustee himself.” Mosser v. Darrow, 341 U. S. 267, 272 (1951). See Jackson v. Smith, 254 U. S. 586, 589 (1921); Jackson v. Ludeling, 21 Wall. 616, 631-632 (1874). As the Court explained in Mosser, a contrary rule “would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own.” 341 U. S., at 271. See SEC v. Texas Gulf Sulphur Co., 446 F. 2d 1301, 1308 (CA2), cert. denied, 404 U. S. 1005 (1971). Thus, the tippee’s duty to disclose or abstain is derivative from that of the insider’s duty. See Tr. of Oral Arg. 38. Cf. Chiarella, 445 U. S., at 246, n. 1 (Blackmun, J., dissenting). As we noted in Chiarella, “[t]he tippee’s obligation has been viewed as arising from his role as a participant after the fact in the insider’s breach of a fiduciary duty.” Id., at 230, n. 12. Thus, some tippees must assume an insider’s duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly. And for Rule 10b-5 purposes, the insider’s disclosure is improper only where it would violate his Cady, Roberts duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach. As Commissioner Smith perceptively observed in In re Investors Management Co., 44 S. E. C. 633 (1971): “[TJippee responsibility must be related back to insider responsibility by a necessary finding that the tippee knew the information was given to him in breach of a duty by a person having a special relationship to the issuer not to disclose the information... Id., at 651 (concurring in result). Tipping thus properly is viewed only as a means of indirectly violating the Cady, Roberts disclose-or-abstain rule. C In determining whether a tippee is under an obligation to disclose or abstain, it thus is necessary to determine whether the insider’s “tip” constituted a breach of the insider’s fiduciary duty. All disclosures of confidential corporate information are not inconsistent with the duty insiders owe to shareholders. In contrast to the extraordinary facts of this case, the more typical situation in which there will be a question whether disclosure violates the insider’s Cady, Roberts duty is when insiders disclose information to analysts. See n. 16, supra. In some situations, the insider will act consistently with his fiduciary duty to shareholders, and yet release of the information may affect the market. For example, it may not be clear — either to the corporate insider or to the recipient analyst — whether the information will be viewed as material nonpublic information. Corporate officials may mistakenly think the information already has been disclosed or that it is not material enough to affect the market. Whether disclosure is a breach of duty therefore depends in large part on the purpose of the disclosure. This standard was identified by the SEC itself in Cady, Roberts: a purpose of the securities laws was to eliminate “use of inside information for personal advantage.” 40 S. E. C., at 912, n. 15. See n. 10, supra. Thus, the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach. As Commissioner Smith stated in Investors Management Co.: “It is important in this type of case to focus on policing insiders and what they do... rather than on policing information per se and its possession... 44 S. E. C., at 648 (concurring in result). The SEC argues that, if inside-trading liability does not exist when the information is transmitted for a proper purpose but is used for trading, it would be a rare situation when the parties could not fabricate some ostensibly legitimate business justification for transmitting the information. We think the SEC is unduly concerned. In determining whether the insider’s purpose in making a particular disclosure is fraudulent, the SEC and the courts are not required to read the parties’ minds. Scienter in some cases is relevant in determining whether the tipper has violated his Cady, Roberts duty. But to determine whether the disclosure itself “deceive[s], manipulate^], or defraud[s]” shareholders, Aaron v. SEC, 446 U. S. 680, 686 (1980), the initial inquiry is whether there has been a breach of duty by the insider. This requires courts to focus on objective criteria, i. e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings. Cf. 40 S. E. C., at 912, n. 15; Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws, 93 Harv. L. Rev. 322, 348 (1979) (“The theory... is that the insider, by giving the information out selectively, is in effect selling the information to its recipient for cash, reciprocal information, or other things of value for himself...”)• There are objective facts and circumstances that often justify such an inference. For example, there may be a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient. The elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend. The tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient. Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts. But it is essential, we think, to have a guiding principle for those whose daily activities must be limited and instructed by the SEC’s inside-trading rules, and we believe that there must be a breach of the insider’s fiduciary duty before the tippee inherits the duty to disclose or abstain. In contrast, the rule adopted by the SEC in this case would have no limiting principle. h-H Under the inside-trading and tipping rules set forth above, we find that there was no actionable violation by Dirks. It is undisputed that Dirks himself was a stranger to Equity Funding, with no pre-existing fiduciary duty to its shareholders. He took no action, directly or indirectly, that induced the shareholders or officers of Equity Funding to repose trust or confidence in him. There was no expectation by Dirks’ sources that he would keep their information in confidence. Nor did Dirks misappropriate or illegally obtain the information about Equity Funding. Unless the insiders breached their Cady, Roberts duty to shareholders in disclosing the nonpublic information to Dirks, he breached no duty when he passed it on to investors as well as to the Wall Street Journal. It is clear that neither Secrist nor the other Equity Funding employees violated their Cady, Roberts duty to the corporation’s shareholders by providing information to Dirks. The tippers received no monetary or personal benefit for revealing Equity Funding’s secrets, nor was their purpose to make a gift of valuable information to Dirks. As the facts of this case clearly indicate, the tippers were motivated by a desire to expose the fraud. See supra, at 648-649. In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by Dirks. See n. 20, supra. Dirks therefore could not have been “a participant after the fact in [an] insider’s breach of a fiduciary duty.” Chiarella, 445 U. S., at 230, n. 12. V We conclude that Dirks, in the circumstances of this case, had no duty to abstain from use of the inside information that he obtained. The judgment of the Court of Appeals therefore is Reversed. The facts stated here are taken from more detailed statements set forth by the Administrative Law Judge, App. 176-180, 225-247; the opinion of the Securities and Exchange Commission, 21 S. E. C. Docket 1401, 1402-1406 (1981); and the opinion of Judge Wright in the Court of Appeals, 220 U. S. App. D. C. 309, 314-318, 681 F. 2d 824, 829-833 (1982). Dirks received from his firm a salary plus a commission for securities transactions above a certain amount that his clients directed through his firm. See 21 S. E. C. Docket, at 1402, n. 3. But “[i]t is not clear how many of those with whom Dirks spoke promised to direct some brokerage business through [Dirks’ firm] to compensate Dirks, or how many actually did so.” 220 U. S. App. D. C., at 316, 681 F. 2d, at 831. The Boston Company Institutional Investors, Inc., promised Dirks about $25,000 in commissions, but it is unclear whether Boston actually generated any brokerage business for his firm. See App. 199, 204-205; 21 S. E. C. Docket, at 1404, n. 10; 220 U. S. App. D. C., at 316, n. 5, 681 F. 2d, at 831, n. 5. As early as 1971, the SEC had received allegations of fraudulent accounting practices at Equity Funding. Moreover, on March 9, 1973, an official of the California Insurance Department informed the SEC’s regional office in Los Angeles of Secrist’s charges of fraud. Dirks himself voluntarily presented his information at the SEC’s regional office beginning on March 27. A federal grand jury in Los Angeles subsequently returned a 105-count indictment against 22 persons, including many of Equity Funding’s officers and directors. All defendants were found guilty of one or more counts, either by a plea of guilty or a conviction after trial. See Brief for Petitioner 15; App. 149-153. Section 17(a), as set forth in 15 U. S. C. § 77q(a), provides: “It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly— “(1) to employ any device, scheme, or artifice to defraud, or “(2) to obtain money or property by means of any untrue statement of a material fact or any omission 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, or “(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” Section 10(b) 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 use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 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, “(a) To employ any device, scheme, or artifice to defraud, “(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, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” Justice Blackmun’s dissenting opinion minimizes the role Dirks played in making public the Equity Funding fraud. See post, at 670 and 677, n. 15. The dissent would rewrite the history of Dirks’ extensive investigative efforts. See, e. g., 21 S. E. C. Docket, at 1412 (“It is clear that Dirks played an important role in bringing [Equity Funding’s] massive fraud to light, and it is also true that he reported the fraud allegation to [Equity Funding’s] auditors and sought to have the information published in the Wall Street Journal”); 220 U. S. App. D. C., at 314, 681 F. 2d, at 829 (Wright, J.) (“Largely thanks to Dirks one of the most infamous frauds in recent memory was uncovered and exposed, while the record shows that the SEC repeatedly missed opportunities to investigate Equity Funding”). Section 15 of the Securities Exchange Act, 15 U. S. C. § 78o(b)(4)(E), provides that the SEC may impose certain sanctions, including censure, on any person associated with a registered broker-dealer who has “willfully aided [or] abetted” any violation of the federal securities laws. See 15 U. S. C. §78ff(a) (1976 ed., Supp. V) (providing criminal penalties). The duty that insiders owe to the corporation’s shareholders not to trade on inside information differs from the common-law duty that officers and directors also have to the corporation itself not to mismanage corporate assets, of which confidential information is one. See 3 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 848, 900 (rev. ed. 1975 and Supp. 1982); 3A id., §§ 1168.1, 1168.2 (rev. ed. 1975). In holding that breaches of this duty to shareholders violated the Securities Exchange Act, the Cady, Roberts Commission recognized, and we agree, that “[a] significant purpose of the Exchange Act was to eliminate the idea that use of inside information for personal advantage was a normal emolument of corporate office.” See 40 S. E. C., at 912, n. 15. Rule 10b-5 is generally the most inclusive of the three provisions on which the SEC rested its decision in this case, and we will refer to it when we note the statutory basis for the SEC’s inside-trading rules. The SEC views the disclosure duty as requiring more than disclosure to purchasers or sellers: “Proper and adequate disclosure of significant corporate developments can only be effected by a public release through the appropriate public media, designed to achieve a broad dissemination to the investing public generally and without favoring any special person or group.” In re Faberge, Inc., 45 S. E. C. 249, 256 (1973). See 445 U. S., at 233; id., at 237 (Stevens, J., concurring); id., at 238-239 (Brennan, J., concurring in judgment); id., at 239-240 (BurgeR, C. J., dissenting). Cf. id., at 252, n. 2 (Blackmun, J., dissenting) (recognizing that there is no obligation to disclose material nonpublic information obtained through the exercise of “diligence or acumen” and “honest means,” as opposed to “stealth”). Under certain circumstances, such as where corporate information is revealed legitimately to an underwriter, accountant, lawyer, or consultant working for the corporation, these outsiders may become fiduciaries of the shareholders. The basis for recognizing this fiduciary duty is not simply that such persons acquired nonpublic corporate information, but rather that they have entered into a special confidential relationship in the conduct of	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 104 ]	sc_adminaction
INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION, AFL-CIO, v. NATIONAL LABOR RELATIONS BOARD et al. No. 284. Argued April 17, 1961. Decided June 5, 1961. Charles J. Morris and Morris P. Glushien argued the cause for petitioner. With them on the brief were L.N.D. Wells, Jr. and Ruth Weyand. Dominick L. Manoli argued the cause for the National Labor Relations Board, respondent. With him on the briefs were former Solicitor General Rankin, Solicitor General Cox, Stuart Rothman, Norton J. Come, Frederick U. Reel and Herman M. Levy. Mr. Justice Clark delivered the opinion of the Court. We are asked to decide in this case whether it was an unfair labor practice for both an employer and a union to enter into an agreement under which the employer recognized the union as exclusive bargaining representative of certain of his employees, although in fact only a minority of those employees had authorized the union to represent their interests. The Board found that by extending such recognition, even though done in the good-faith belief that the union had the consent of a majority of employees in the appropriate bargaining unit, the employer interfered with the organizational rights of his employees in violation of §8 (a)(1) of the National Labor Relations Act and that such recognition also constituted unlawful support to a labor organization in violation of § 8 (a)(2). In addition, the Board found that the, union violated §8 (b)(1)(A) by its acceptance of exclusive bargaining authority at a time when in fact it did not have the support of a majority of the employees, and this in spite of its bona fide belief that it did. Accordingly, the Board ordered the unfair labor practices discontinued and directed the holding of a representation election. The Court of Appeals, by a divided vote, granted enforcement, 108 U. S. App. D. C. 68, 280 F. 2d 616. We granted certiorari. 364 U. S. 811. We agree with the Board and the Court of Appeals that such extension and acceptance of recognition constitute unfair labor practices, and that the remedy provided was appropriate. In October 1956 the petitioner union initiated an organizational campaign at Bernhard-Altmann Texas Corporation’s knitwear manufacturing plant in San Antonio, Texas. No other labor organization was similarly engaged at that time. During the course of that campaign, on July 29, 1957, certain of the company’s Topping Department employees went on strike in protest against a wage reduction. That dispute was in no way related to the union campaign, however, and the organizational efforts were continued during the strike. Some of the striking employees had signed authorization cards solicited by the union during its drive, and, while the strike was in progress, the union entered upon a course of negotiations with the employer. As a result of those negotiations, held in New York City where the home offices of both were located, on August 30, 1957, the employer and union signed a “memorandum of understanding.” . In that memorandum the company recognized the union as exclusive bargaining representative of “all production and shipping employees.” The union representative asserted that the union’s comparison of the employee authorization cards in its possession with the number of eligible employees representatives of the company furnished it indicated that the union had in fact secured such cards from a majority of employees in the unit. Neither employer nor union made any effort at that time to check the cards in the union’s possession against the employee roll, or otherwise, to ascertain with any degree of certainty that the union’s assertion, later found by the Board to be erroneous, was founded on fact rather than upon good-faith assumption. The agreement, containing no union security provisions, called for the ending of the strike and for certain improved wages and conditions of employment. It also provided that a “formal agreement containing these terms” would “be promptly drafted . . . and signed by both parties within the next two weeks.” Thereafter, on October 10,1957, a formal collective bargaining agreement, embodying the terms of the August 30 memorandum, was signed by the parties. The bargaining unit description set out in the formal contract, although more specific, conformed to that contained in the prior memorandum. It is not disputed that as of execution of the formal contract the union in fact represented a clear majority of employees in the appropriate unit. In upholding the complaints filed against the employer and union by the General Counsel, the Board decided that the employer’s good-faith belief that the union in fact represented a majority of employees in the unit on the critical date of the memorandum of understanding was not a defense, “particularly where, as here, the Company made no effort to check the authorization cards against its payroll records.” 122 N. L. R. B. 1289, 1292. Noting that the union was “actively seeking recognition at the time such recognition was granted,” and that “the Union was [not] the passive recipient of an unsolicited gift bestowed by the Company,” the Board found that the union’s execution of the August 30 agreement was a “direct deprivation” of the nonconsenting majority employees’ organizational and bargaining rights. At pp. 1292, 1293, note 9. Accordingly, the Board ordered the employer to withhold all recognition from the union and to cease giving effect to agreements entered into with the union; the union was ordered to cease acting as bargaining representative of any of the employees until such time as a Board-conducted election. demonstrated its majority status, and to refrain from seeking to enforce the agreements previously entered. The Court of Appeals found it difficult to “conceive of á clearer restraint on the employees’ right of self-organization than for their employer to enter into a collective-bargaining agreement with a minority of the employees.” 280 F. 2d, at 619. The court distinguished our decision in Labor Board v. Drivers Local Union No. 639, 362 U. S. 274, on the ground that there was involved here neither recognitional nor organizational picketing. The court held that the bona fides of the parties was irrelevant except to the extent that it “was arrived at through an adequate effort to determine the true facts of the situation.” At p. 622. At the outset, we reject as without relevance to our decision the fact that, as of the execution date of the formal agreement on October 10, petitioner represented a majority of the employees. As the Court of Appeals indicated, the recognition of the minority union on August 30, 1957, was “a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative.” 280 F. 2d, at 621. It is, therefore, of no consequence that petitioner may have acquired by October 10 the necessary majority if, during the interim, it was acting unlawfully. Indeed, such acquisition of majority status itself might indicate that the recognition secured by the August 30 agreement afforded petitioner a deceptive cloak of authority with which to persuasively elicit additional employee support. Nor does this case directly involve a strike. The strike which occurred was in protest against a wage reduction and had nothing to do with petitioner’s quest for recognition. Likewise, no question of picketing is presented. Lastly, the violation which the Board found was the grant by the employer of exclusive representation status to a minority union, as distinguished from an employer’s bargaining with a minority union for its members only. Therefore, the exclusive representation provision is the vice in the agreement, and discussion of “collective bargaining,” as distinguished from “exclusive recognition,” is pointless. Moreover, the insistence that we hold the agreement valid and enforceable as to those employees who consented to it must be rejected. On the facts shown, the agreement must fail in its entirety. It was obtained under the erroneous claim of majority representation. Perhaps the employer would not have entered into it if he had known the facts. Quite apart from other conceivable situations, the unlawful genesis of this agreement precludes its partial validity. In their selection of a bargaining representative, § 9 (a) of the Wagner Act guarantees employees freedom of choice and majority rule. J. I. Case Co. v. Labor Board, 321 U. S. 332, 339. In short, as we said in Brooks v. Labor Board, 348 U. S. 96, 103, the Act placed “a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers.” Here, however, the reverse has been shown to be the case. Bern-hard-Altmann granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority. There could be no clearer abridgment of § 7 of the Act, assuring employees the right “to bargain collectively through representatives of their own choosing” or “to refrain from” such activity. It follows, without need of further demonstration, that the employer activity found present here violated § 8 (a)(1) of the Act which prohibits employer interference with, and restraint of, employee exercise of § 7 rights. Section 8 (a) (2) of the Act makes it an unfair labor practice for an employer to “contribute . . . support” to a labor organization. The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given “a marked advantage over any other in securing the adherence of employees,” Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 267. In the Taft-Hartley Law, Congress added §8 (b)(1) (A) to the Wagner Act, prohibiting, as the Court of Appeals held, “unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8 (a) (1).” 280 F. 2d, at 620. It was the intent of Congress to impose upon unions the same restrictions which the Wagner Act imposed on employers with respect to violations of employee rights. The petitioner, while taking no issue with the fact of its minority status on the critical date, maintains that both Bernhard-Altmann’s and its own good-faith beliefs in petitioner’s majority status are a complete defense. To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act — that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives. We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices here involved. The act made unlawful by § 8 (a) (2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees’ rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith. This conclusion, while giving the employee only the protection assured him by the Act, places no particular hardship on the employer or the union. It merely requires that recognition be withheld until the Board-conducted election results in majority selection of a representative. The Board’s order here, as we might infer from the employer’s failure to resist its enforcement, would apparently result in similarly slight hardship upon it. We do not share petitioner’s apprehension that holding such conduct unlawful will somehow induce a breakdown, or seriously impede the progress of collective bargaining. If an employer takes reasonable steps to verify union claims, themselves advanced only after careful estimate — precisely what Bernhard-Altmann and petitioner failed to do here — he can readily ascertain their validity and obviate a Board election. We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well-analyzed employer records with union listings or authorization cards. Individual and collective employee rights may not be trampled upon merely because it is inconvenient to avoid doing so. Moreover, no penalty is attached to the violation. Assuming that an employer in good faith accepts or rejects a union claim of majority status, the validity of his decision may be tested in an unfair labor practice proceeding. If he is found to have erred in extending or withholding recognition, he is subject only to a remedial order requiring him to conform his conduct to the norms set out in the Act, as was the case here. No further penalty results. We believe the Board’s remedial order is the proper one in such cases. Labor Board v. District 50, U. M. W., 355 U. S. 453. Affirmed. Except for filing an answer, the employer, Bernhard-Altmann Texas Corporation, did not resist enforcement of the Board’s order and has not sought review in this Court. Section 8 (a) (1) and (2), insofar as pertinent, provide: “It shall be an unfair labor practice for an employer— “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; “(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . . .” 61 Stat. 140, 29 U. S. C. § 158 (a) (1), (2). Section 8 (b)(1)(A) provides in pertinent part: “It shall be an unfair labor practice for a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7. . . .” 61 Stat. 141, 29 U. S. C. §158 (b)(1). The Board found that as of August 30 the union in fact had authority to represent either 70 employees out of a relevant total of 280, or 158 out of 368, depending upon the criteria used in determining employee eligibility. “Accordingly, the Union could not, under any circumstances, have represented a majority of the employees involved on August 30, 1957.” 122 N. L. R. B. 1289, 1291-1292. The Court of Appeals considered irrelevant the achievement of majority status during the period that the union maintained the unlawful agreement. 280 F. 2d 616, 619, note 3. Member Fanning agreed with a majority of the Board that the employer violated § 8 (a) (1) and (2), but dissented as to the finding of union violation of § 8 (b) (1) (A). 122 N. L. R. B. 1289, 1297. However, the terms and conditions of employment fixed by the agreement were not required to be varied or abandoned. We take it that the Board’s - order restraining the union and employer from dealing will, in any 'event, terminate after the election is held. Relying upon reference to § 9 decertification proceedings, petitioner contends that such a contract with a minority union does not prevent employees from exercising complete freedom. The availability of such a remedy is doubtful in view of the Board’s position that the “contract bar” defense prevents a showing of lack of majority status at the time a contract was made. See In re Columbia River Salmon & Tuna Packers Assn., 91 N. L. R. B. 1424, and cases cited therein. Section 7 provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” 61 Stat. 140, 29 U. S. C. § 157. See S. Rep. No. 105, 80th Cong., 1st Sess. 50 (Supp. Views), I Leg. Hist. (1947) 456; II Leg. Hist. (1947) 1199, 1204, 1207. Although it is of no significance to our holding, we note that there was made no reasonable effort to determine whether in fact petitioner represented a majority of the employees. See Labor Board v. Perfect Circle Co., 162 F. 2d 566; Labor Board v. Illinois Tool Works, 153 F. 2d 811; McQuay-Norris Mfg. Co. v. Labor Board, 116 F. 2d 748; and cf. Labor Board v. Industrial Cotton Mills, 208 F. 2d 87. Section 8 (a) (5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees. . . .” 61 Stat. 141, 29 U. S. C. § 158 (a) (5).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 81 ]	sc_adminaction
KOSYDAR, TAX COMMISSIONER OF OHIO v. NATIONAL CASH REGISTER CO. No. 73-629. Argued March 19, 1974 Decided May 20, 1974 Stewart, J., delivered the opinion for a unanimous Court. Dwight C. Pettay, Jr., Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the briefs were William J. Brown, Attorney General, and Maryann B. Gall, Assistant Attorney General. Roger F. Day argued the cause for respondent. With him on the brief was Carlton S. Dargusch, Jr. Mr. Justice Stewart delivered the opinion of the Court. The Import-Export Clause of the Constitution, Art. I, §10, cl. 2, provides: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imports, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul > of the Congress.” The issue for decision in this case is whether the assessment of an ad valorem personal property tax by the petitioner Tax Commissioner of Ohio upon certain property of the respondent is in conflict with this Clause. I The respondent National Cash Register Co. (NCR) has for many years engaged in the manufacture of cash registers, accounting machines, and electronic data processing systems, which it markets worldwide. Its home offices, main production plant, and warehouse are located in Dayton, Ohio. For marketing purposes, NCR is organized into two divisions, domestic and international, each wholly separated from the other. It is with the operations of the latter division that this case is concerned. NCR maintains no inventory of machines which are available to meet incoming orders from foreign customers. Rather, when a salesman from the international division receives an order from a customer, an individual order form is completed. The machine is then built to specification, taking into account the commercial peculiarities of the country to which it is to be shipped and the buyer's individual needs. After manufacture, the machine is inspected, packed, and crated for shipment abroad. The crated machine is then taken to an NCR warehouse in Dayton, to await foreign shipment. The machines relevant to this case were in storage in the Dayton warehouse, awaiting shipment, on December 31, 1967, when the petitioner Tax Commissioner assessed a personal property tax upon them. NCR appealed the Commissioner’s assessment to the Board of Tax Appeals of the Ohio Department of Taxation. Its basic claim was that the “international inventory” in the Dayton warehouse was made up of exports, and thus was immune from state taxation under the Import-Export Clause. In support of this contention, NCR offered evidence to show that, because of their unique construction and special adaptation for foreign use, the crated machines were not salable domestically. Further evidence was offered to show that no piece of equipment built for the international division has ever gone anywhere but into that division; that there is no recorded instance of a machine that was sold to a foreign purchaser being returned; and that no exported item has ever found its way back into the United States market. The Board of Tax Appeals nonetheless upheld the Commissioner’s assessment. It ruled that even if the crated machines were irrevocably committed to export, the immunity from state taxation conferred by Art. I, § 10, cl. 2, did not attach' until the property actually started on its journey to a foreign destination. Since the machines here had not yet entered the export stream, the Board of Tax Appeals concluded that they were still subject to the personal property tax. The Supreme Court of Ohio reversed this decision by a divided vote. 35 Ohio St. 2d 166, 298 N. E. 2d 559. Relying on the evidence about the domestic nonsal-ability of the machines, the state court concluded that there was a “certainty of export” in this case. Given that “certainty,” the court thought it irrelevant for Import-Export Clause purposes that the taxed machines had not, on the date of the assessment, been moved from the storage facility in Dayton. We granted certiorari, 414 U. S. 1111, because the case seemed to present important questions touching the accommodation of state and federal interests under the Constitution. II By its own terms, the prohibition on taxation contained in the Import-Export Clause is absolute; no duties or imposts are allowed “except what may be absolutely necessary for executing [a State’s] inspection Laws.” Consequently, the essential question in cases involving the Clause is a narrow one: is the property upon which a tax has been sought to be imposed an “export,” and thus entitled to protection under the provision's literal terms? The seminal case on the subject is Coe v. Errol, 116 U. S. 517. Coe involved a shipment of spruce logs that had been hewn at various locations in Maine and New Hampshire, and were to be floated down the Androscog-gin River for manufacture and sale in Lewiston, Maine. The logs were detained by low water in the town of Errol, New Hampshire, where the local selectmen assessed a number of taxes upon them. The owners of the logs contested the assessments, claiming that the property was immune from taxation under both the Commerce and Import-Export Clauses, since the river served as a “public highway” for the interstate shipment of timber. The Supreme Court of New Hampshire sustained the tax, and this Court affirmed. Writing for the Court, Mr. Justice Bradley viewed “the precise question for solution” as follows: “Do the owner’s state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation?” Id., at 525. That question was answered in the negative. Recognizing that its task was to set a “point of time when State jurisdiction over the commodities of commerce begins and ends,” id., at 526, the Court concluded that “such goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey." Id., at 527 (emphasis added). Since the logs in Coe had not begun a “final movement for transportation from the State of their origin to that of their destination,” id., at 525, the Court held that the Constitution provided no immunity from local taxation. The basic principle of Coe v. Errol is a simple one— the exemption from taxation in the Import-Export Clause “attaches to the export and not to the article before its exportation.” Cornell v. Coyne, 192 U. S. 418, 427. This Court has adhered to that principle in the almost 90 years since Coe was decided, and the essential problem in cases involving the constitutional prohibition against taxation of exports has therefore been to decide whether a sufficient commencement of the process of exportation has occurred so as to immunize the article at issue from state taxation. Of necessity, the inquiry has usually been a factual one. For example, in A. G. Spalding & Bros. v. Edwards, 262 U. S. 66, this Court decided that delivery of baseballs and bats to an export carrier for shipment to Venezuela constituted a significant “step in exportation,” id., at 68, and exempted the goods from a federal revenue tax. Similarly, in Richfield Oil Corp. v. State Board of Equalization, 329 U. S. 69, it was held that the delivery of oil into the storage tanks of a New Zealand-bound steamer “marked the commencement of the movement of the oil abroad,” id., at 83, making the product immune from a California sales tax. Yet, even if the inquiry in cases like Spalding and Richfield Oil was specifically directed at determining whether particular acts of movement toward a final destination constituted sufficient entrance into the export stream to invoke the protection of the Import-Export Clause, this Court has never lost sight of one basic principle — at least some such entrance is a prerequisite to the Clause's operation. That fact is well illustrated by the opinion of the Court in Empresa Siderurgica v. County of Merced, 337 U. S. 154. That case involved a California cement plant, which had been sold to a Colombian buyer. Title to the property had passed to the buyer, and'a common carrier had begun to dismantle the plant and crate it for shipment to Colombia. At a stage when 12% of the plant had been shipped out of the country, the county of Merced levied a personal property tax on the remaining 88%. This balance included about 10% of the original plant that had been dismantled and crated or prepared for shipment, but which had not yet begun its voyage to Colombia. This Court held that the tax on the 88%, including this crated portion, did not violate the Import-Export Clause. Adhering to the test of Coe v. Errol, the Court stated: “Under that test it is not enough that there is an intent to export, or a plan which contemplates exportation, or an integrated series of events which will end with it. . . . It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.” Id., at 156-157. Since the 88% of the cement plant had not yet begun its out-of-state journey, the Court concluded that the California tax was not one upon “exports” within the meaning of the Clause. We can find little in the case before us to take it outside the ambit of the Empresa Siderúrgica holding. At the time that the respondent’s machines were assessed for taxation, they were sitting in the Dayton warehouse awaiting shipment. Title and possession were in NCR, payment had not yet been made by the putative purchasers, no export license had issued, and the machines were in the complete control of the respondent. More important, there had simply been no movement of the goods — no shipment, and no commencement of the process of exportation. Given this factual setting, it would require a sharp departure from nearly a century of precedents under the Import-Export Clause for us to conclude that the machines were “exports” and exempt from state taxation. In an effort to avoid the clear holdings of our prior cases, NCR emphasizes the peculiar nature of the taxed machines, and contends that their nonadaptability to domestic use brought about a “certainty of export.” Because of this practical absence of “diversion potential,” NCR argues that the ultimate placement of the machines into the stream of exportation is a mere formality, and that this Court should treat the crated property as already having become an export in the constitutional sense even as it sits in the Dayton warehouse. As a practical matter, it might well be doubted that the “diversion potential” of the crated portions of the cement plant in Empresa Siderurgica was any greater than that present here. But, even assuming, arguendo, the validity of NCR's arguments about the practical certainty of export here, we think it plain that the warehoused machines are not entitled to the protection of the Import-Export Clause. Mr. Justice Frankfurter put the matter succinctly in Joy Oil Co. v. State Tax Comm’n, 337 U. S. 286, 288: “The Export-Import Clause was meant to confer immunity from local taxation upon property being exported, not to relieve property eventually to be exported from its share of the cost of local services.” We may accept as fact the respondent’s assurances that the prospect of eventual exportation here was virtually certain. “But that prospect, no matter how bright, does not start the process of exportation. On the tax date the movement to foreign shores had neither started nor been committed.” Empresa Siderurgica, 337 U. S., at 157. Given the absence of an entrance of the respondent’s machines into the export stream, the immunities of the Import-Export Clause are unavailable. It may be said that insistence upon an actual movement into the stream of export in the case at hand represents an overly wooden or mechanistic application of the Coe doctrine. This is an instance, however, where we believe that simplicity has its virtues. The Court recognized long ago that even if it is not an easy matter to set down a rule determining the moment in time when articles obtain the protection of the Import-Export Clause, “it is highly important, both to the shipper and to the State, that it should be clearly defined so as to avoid all ambiguity or question.” Coe, 116 U. S., at 526. As Mr. Justice Holmes put the matter in A. G. Spalding, 262 U. S., at 69: “[W]e have to fix a point at which, in view of the purpose of the Constitution, the export must be said to begin. As elsewhere in the law there will be other points very near to it on the other side, so that if the necessity of fixing one definitely is not remembered any determination may seem arbitrary.” Our prior cases have determined that the protections of the Import-Export Clause are not available until the article at issue begins its physical entry into the stream of exportation. We find no reason to depart from that settled doctrine. For these reasons, the judgment of the Supreme Court of Ohio is Reversed. There is often a time lag between production and final shipment, and an inventory of international machines is therefore built up at the Dayton warehouse. The delays in eventual shipment occur for a number of reasons. In some cases, recipient countries will not allow partial shipments, so when a large order has been placed and the production cycle is slow, the machines' must be consolidated and stored prior to shipment. In the electronic data processing area, the component parts of a shipment are often produced at several different locations, necessitating a consolidation prior to shipment. In other instances, delay in final shipment is caused by difficulties in procuring importation licenses or the uncertainties of the international monetary situation. Under Ohio Rev. Code Ann. § 5709.01, all personal property located and used in business within the State is subject to an ad valorem tax. Ohio Rev. Code Ann. §5711.16 provides that articles which have at any time been manufactured are subject to the tax. A number of factors make domestic sales of the machines impractical. For one thing, the keyboards, printing mechanisms, characters, dispensing mechanisms, and decimal point placement of the machines are geared to the particular monetary system employed in the customer’s country. Moreover, the machines are quite often designed for use on electrical systems not prevalent in this country. And, even when mechanical problems do not exist, the fact remains that merchandising techniques in this country are considerably more sophisticated than those in many other nations, so as to make machines designed for foreign use somewhat obsolete in the domestic market. There is no claim that this exception is applicable in any way in the present case. The Spalding case arose under Art. I, § 9, cl. 5, of the Constitution, which provides that “No Tax or Duty shall be laid on Articles exported from any State.” A long line of cases has recognized, however, that the meaning of “export” is the same under that provision as under the Import-Export Clause. See, e. g., Brown v. Maryland, 12 Wheat. 419, 445; Turpin v. Burgess, 117 U. S. 504, 506; Cornell v. Coyne, 192 U. S. 418, 427-428; Richfield Oil Corp. v. State Board of Equalization, 329 U. S. 69, 83. In a decision rendered two weeks after Empresa Siderúrgica, the Court made it clear that not every preliminary movement of goods toward eventual exportation was sufficient to invoke the protection of the Import-Export Clause. In Joy Oil Co. v. State Tax Comm’n, 337 U. S. 286, the question was whether an ad valorem property tax on gasoline stored in tanks at Dearborn, Michigan, for eventual export to Canada, was permissible under the Clause. The gasoline had previously been purchased by a Canadian corporation, had been certified as- purchased for export, shipped by rail to Detroit under bills of lading marked “For Export to Canada,” and eventually placed in the Dearborn tanks. The bulk of the gasoline remained in the tanks for over 15 months, because of an apparent shortage of shipping space by water. This Court held that, despite the initial transportation of the gasoline to Dearborn, the hiatus in the journey subjected the property to state taxation. Indeed, it might well be contended that in this case: "There is no certainty of export. The record establishes that some machines have remained stored in the warehouse awaiting shipment for three years. The orders could be cancelled, the export license might never issue, the financing may fail to materialize, the machines could be destroyed, dismantled or sold for scrap. These machines were no different from any other mass of goods in a warehouse awaiting shipment.” 35 Ohio St. 2d 166, 175, 298 N. E. 2d 559, 564-565 (O’Neill, C. J., dissenting).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
BEARD v. STAHR, SECRETARY OF THE ARMY, et al. No. 648. Decided May 28, 1962. Frederick Bernays Wiener for appellant. Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr. for appellees. Per Curiam. The judgment of the District Court is vacated and the cause is remanded with directions to dismiss the complaint. The action is premature. The appellant will not be removed from the active list of the Regular Army unless the Secretary of the Army exercises the discretionary authority to remove him conferred by 10 U. S. C. § 3794. The Secretary has not stated that he will so exercise his discretion as to remove appellant. If the Secretary does not remove the appellant it will be unnecessary to pass on the constitutional objections which have been urged. If appellant is removed, the Court is satisfied that adequate procedures for seeking redress will be open to him. Compare Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752, 772-773. Accordingly, the application for a stay is denied. The Chief Justice is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits and would grant the application for a stay. Mr. Justice Frankfurter took no part in the decision of this case.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 5 ]	sc_adminaction
MISSISSIPPI UNIVERSITY FOR WOMEN et al. v. HOGAN No. 81-406. Argued March 22, 1982 Decided July 1, 1982 O’Connor, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Burger, C. J., post, p. 733, and Blackmun, J., post, p. 733, filed dissenting opinions. Powell, J., filed a dissenting opinion, in which RehnquiST, J., joined, post, p. 735. Hunter M. Gholson argued the cause for petitioners. With him on the briefs were Bill Attain, Attorney General of Mississippi, and Ed Davis Noble, Jr., Assistant Attorney General. Wilbur O. Colom argued the cause for respondent. With him on the brief was W. Wayne Drinkwater, Jr Zona Fairbanks Hostetler, Snellen Terrill Keiner, Phyllis N. Segal, Marcia D. Greenberger, and Judith L. Lichtman filed a brief for the National Women’s Law Center et al. as amici curiae urging affirmance. Justice O’Connor delivered the opinion of the Court. This case presents the narrow issue of whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment. I The facts are not in dispute. In 1884, the Mississippi Legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi, now the oldest state-supported all-female college in the United States. 1884 Miss. Gen. Laws, Ch. 30, § 6. The school, known today as Mississippi University for Women (MUW), has from its inception limited its enrollment to women. In 1971, MUW established a School of Nursing, initially offering a 2-year associate degree. Three years later, the school instituted a 4-year baccalaureate program in nursing and today also offers a graduate program. The School of Nursing has its own faculty and administrative officers and establishes its own criteria for admission. Respondent, Joe Hogan, is a registered nurse but does not hold a baccalaureate degree in nursing. Since 1974, he has worked as a nursing supervisor in a medical center in Columbus, the city in which MUW is located. In 1979, Hogan applied for admission to the MUW School of Nursing’s baccalaureate program. Although he was otherwise qualified, he was denied admission to the School of Nursing solely because of his sex. School officials informed him that he could audit the courses in which he was interested, but could not enroll for credit. Tr. 26. Hogan filed an action in the United States District Court for the Northern District of Mississippi, claiming the single-sex admissions policy of MUW’s School of Nursing violated the Equal Protection Clause of the Fourteenth Amendment. Hogan sought injunctive and declaratory relief, as well as compensatory damages. Following a hearing, the District Court denied preliminary injunctive relief. App. to Pet. for Cert. A4. The court concluded that maintenance of MUW as a single-sex school bears a rational relationship to the State’s legitimate interest “in providing the greatest practical range of educational opportunities for its female student population.” Id., at A3. Furthermore, the court stated, the admissions policy is not arbitrary because providing single-sex schools is consistent with a respected, though by no means universally accepted, educational theory that single-sex education affords unique benefits to students. Ibid. Stating that the case presented no issue of fact, the court informed Hogan that it would enter summary judgment dismissing his claim unless he tendered a factual issue. When Hogan offered no further evidence, the District Court entered summary judgment in favor of the State. Record 73. The Court of Appeals for the Fifth Circuit reversed, holding that, because the admissions policy discriminates on the basis of gender, the District Court improperly used a “rational relationship” test to judge the constitutionality of the policy. 646 F. 2d 1116, 1118 (1981). Instead, the Court of Appeals stated, the proper test is whether the State has carried the heavier burden of showing that the gender-based classification is substantially related to an important governmental objective. Id,., at 1118, 1119. Recognizing that the State has a significant interest in providing educational opportunities for all its citizens, the court then found that the State had failed to show that providing a unique educational opportunity for females, but not for males, bears a substantial relationship to that interest. Id., at 1119. Holding that the policy excluding Hogan because of his sex denies him equal protection of the laws, the court vacated the summary judgment entered against Hogan as to his claim for monetary damages, and remanded for entry of a declaratory judgment in conformity with its opinion and for further appropriate proceedings. Id., at 1119-1120. On rehearing, the State contended that Congress, in enacting § 901(a)(5) of Title IX of the Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 373, 20 U. S. C. § 1681 et seq., expressly had authorized MUW to continue its single-sex admissions policy by exempting public undergraduate institutions that traditionally have used single-sex admissions policies from the gender discrimination prohibition of Title IX. Through that provision, the State argued, Congress limited the reach of the Fourteenth Amendment by exercising its power under §5 of the Amendment. The Court of Appeals rejected the argument, holding that §5 of the Fourteenth Amendment does not grant Congress power to authorize States to maintain practices otherwise violative of the Amendment. 653 F. 2d 222 (1981). We granted certiorari, 454 U. S. 962 (1981), and now affirm the judgment of the Court of Appeals. II We begin our analysis aided by several firmly established principles. Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Reed v. Reed, 404 U. S. 71, 75 (1971). That this statutory policy discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review. Caban v. Mo hammed, 441 U. S. 380, 394 (1979); Orr v. Orr, 440 U. S. 268, 279 (1979). Our decisions also establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an “exceedingly persuasive justification” for the classification. Kirchberg v. Feenstra, 450 U. S. 455, 461 (1981); Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 273 (1979). The burden is met only by showing at least that the classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to the achievement of those objectives.” Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 150 (1980). Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. See Frontiero v. Richardson, 411 U. S. 677, 684-685 (1973) (plurality opinion). If the State’s objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between objective and means is present. The purpose of requiring that close relationship is to assure that the Validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women. The need for the requirement is amply revealed by reference to the broad range of statutes already invalidated by this Court, statutes that relied upon the simplistic, outdated assumption that gender could be used as a “proxy for other, more germane bases of classification,” Craig v. Boren, 429 U. S. 190, 198 (1976), to establish a link between objective and classification. Applying this framework, we now analyze the arguments advanced by the State to justify its refusal to allow males to enroll for credit in MUW’s School of Nursing. Ill A The State’s primary justification for maintaining the single-sex admissions policy of MUW’s School of Nursing is that it compensates for discrimination against women and, therefore, constitutes educational affirmative action. Brief for Petitioners 8. As applied to the School of Nursing, we find the State’s argument unpersuasive. In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened. See Schlesinger v. Ballard, 419 U. S. 498 (1975). However, we consistently have emphasized that “the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.” Weinberger v. Wiesenfeld, 420 U. S. 636, 648 (1975). The same searching analysis must be made, regardless of whether the State’s objective is to eliminate family controversy, Reed v. Reed, 404 U. S. 71 (1971), to achieve administrative efficiency, Frontiero v. Richardson, 411 U. S. 677 (1973), or to balance the burdens borne by males and females. It is readily apparent that a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification. We considered such a situation in Califano v. Webster, 430 U. S. 313 (1977), which involved a challenge to a statutory classification that allowed women to eliminate more low-earning years than men for purposes of computing Social Security retirement benefits. Although the effect of the classification was to allow women higher monthly benefits than were available to men with the same earning history, we ■ upheld the statutory scheme, noting that it took into account that women “as such have been unfairly hindered from earning as much as men” and “work[ed] directly to remedy” the resulting economic disparity. Id., at 318. A similar pattern of discrimination against women influenced our decision in Schlesinger v. Ballard, supra. There, we considered a federal statute that granted female Naval officers a 13-year tenure of commissioned service before mandatory discharge, but accorded male officers only a 9-year tenure. We recognized that, because women were barred from combat duty, they had had fewer opportunities for promotion than had their male counterparts. By allowing women an additional four years to reach a particular rank before subjecting them to mandatory discharge, the statute directly compensated for other statutory barriers to advancement. In sharp contrast, Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities. In fact, in 1970, the year before the School of Nursing’s first class enrolled, women earned 94 percent of the nursing baccalaureate degrees conferred in Mississippi and 98.6 percent of the degrees earned nationwide. U. S. Dept. of Health, Education, and Welfare, Earned Degrees Conferred: 1969-1970, Institutional Data 388 (1972). That year was not an aberration; one decade earlier, women had earned all the nursing degrees conferred in Mississippi and 98.9 percent of the degrees conferred nationwide. U. S. Dept. of Health, Education, and Welfare, Earned Degrees Conferred, 1959-1960: Bachelor’s and Higher Degrees 135 (1960). As one would expect, the labor force reflects the same predominance of women in nursing. When MUW’s School of Nursing began operation, nearly 98 percent of all employed registered nurses were female. United States Bureau of Census, 1981 Statistical Abstract of the United States 402 (1981). Rather than compensate for discriminatory barriers faced by women, MUW’s policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job. By assuring that Mississippi allots more openings in its state-supported nursing schools to women than it does to men, MUW’s admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy. See Stanton v. Stanton, 421 U. S. 7 (1975). Thus, we conclude that, although the State recited a “benign, compensatory purpose,” it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification. The policy is invalid also because it fails the second part of the equal protection test, for the State has made no showing that the gender-based classification is substantially and directly related to its proposed compensatory objective. To the contrary, MUW’s policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men. MUW permits men who audit to participate fully in classes. Additionally, both men and women take part in continuing education courses offered by the School of Nursing, in which regular nursing students also can enroll. Deposition of Dr. James Strobel 56-60 and Deposition of Dean Annette K. Barrar 24-26. The uncontroverted record reveals that admitting men to nursing classes does not affect teaching style, Deposition of Nancy L. Herban 4, that the presence of men in the classroom would not affect the performance of the female nursing students, Tr. 61 and Deposition of Dean Annette K. Barrar 7-8, and that men in coeducational nursing schools do not dominate the classroom. Deposition of Nancy Herban 6. In sum, the record in this case is flatly inconsistent with the claim that excluding men from the School of Nursing is necessary to reach any of MUW’s educational goals. Thus, considering both the asserted interest and the relationship between the interest and the methods used by the State, we conclude that the State has fallen far short of establishing the “exceedingly persuasive justification” needed to sustain the gender-based classification. Accordingly, we hold that MUW’s policy of denying males the right to enroll for credit in its School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment. B In an additional attempt to justify its exclusion of men from MUW’s School of Nursing, the State contends that MUW is the direct beneficiary “of specific congressional legislation which, on its face, permits the institution to exist as it has in the past.” Brief for Petitioners 19. The argument is based upon the language of § 901(a) in Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681(a). Although § 901(a) prohibits gender discrimination in education programs that receive federal financial assistance, subsection 5 exempts the admissions policies of undergraduate institutions “that traditionally and continually from [their] establishment [have] had a policy of admitting only students of one sex” from the general prohibition. See n. 5, supra. Arguing that Congress enacted Title IX in furtherance of its power to enforce the Fourteenth Amendment, a power granted by § 5 of that Amendment, the State would have us conclude that § 901(a)(5) is but “a congressional limitation upon the broad prohibitions of the Equal Protection Clause of the Fourteenth Amendment.” Brief for Petitioners 20. The argument requires little comment. Initially, it is far from clear that Congress intended, through § 901(a)(5), to exempt MUW from any constitutional obligation. Rather, Congress apparently intended, at most, to exempt MUW from the requirements of Title IX. Even if Congress envisioned a constitutional exemption, the State’s argument would fail. Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the Amendment and “to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion....” Ex parte Virginia, 100 U. S. 339, 346 (1880). Congress’ power under § 5, however, “is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.” Katzenbach v. Morgan, 384 U. S. 641, 651, n. 10 (1966). Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. See, e. g., Califano v. Goldfarb, 430 U. S. 199, 210 (1977); Williams v. Rhodes, 393 U. S. 23, 29 (1968). The fact that the language of § 901(a)(5) applies to MUW provides the State no solace: “[A] statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marburg v. Madison, 1 Cranch 137 (1803).” Younger v. Harris, 401 U. S. 37, 52 (1971). IV Because we conclude that the State’s policy of excluding males from MUW’s School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment, we affirm the judgment of the Court of Appeals. It is so ordered. The charter of MUW, basically unchanged since its founding, now provides: “The purpose and aim of the Mississippi State College for Women is the moral and intellectual advancement of the girls of the state by the maintenance of a first-class institution for their education in the arts and sciences, for their training in normal school methods and kindergarten, for their instruction in bookkeeping, photography, stenography, telegraphy, and typewriting, and in designing, drawing, engraving, and painting, and their industrial application, and for their instruction in fancy, general and practical needlework, and in such other industrial branches as experience, from time to time, shall suggest as necessary or proper to fit them for the practical affairs of life.” Miss. Code Ann. § 37-117-3 (1972). Mississippi maintains no other single-sex public university or college. Thus, we are not faced with the question of whether States can provide “separate but equal” undergraduate institutions for males and females. Cf. Vorchheimer v. School District of Philadelphia, 532 F. 2d 880 (CA3 1975), aff’d by an equally divided Court, 430 U. S. 703 (1977). Record, Exhibit 1, 1980-1981 Bulletin of Mississippi University for Women 31-34, 212-229. With a baccalaureate degree, Hogan would be able to earn a higher salary and would be eligible to obtain specialized training as an anesthetist. Tr. 18. Dr. James Strobel, President of MUW, verified that men could audit the equivalent of a full classload in either night or daytime classes. Id., at 39-40. Section 901(a) of Title IX, Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 373, 20 U. S. C. § 1681(a), provides in part: “(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that: “(1)... in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education; “(5)... in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex....” Section 5 of the Fourteenth Amendment provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Although some statements in the Court of Appeals’ decision refer to all schools within MUW, see 646 F. 2d, at 1119, the factual underpinning of Hogan’s claim for relief involved only his exclusion from the nursing program, Complaint ¶ 8-10, and the Court of Appeals’ holding applies only to Hogan’s individual claim for relief. 646 F. 2d, at 1119-1120. Additionally, during oral argument, counsel verified that Hogan sought only admission to the School of Nursing. Tr. of Oral Arg. 24. Because Hogan’s claim is thus limited, and because we review judgments, not statements in opinions, Black v. Cutter Laboratories, 351 U. S. 292 (1956), we decline to address the question of whether MUW’s admissions policy, as applied to males seeking admission to schools other than the School of Nursing, violates the Fourteenth Amendment. Without question, MUW’s admissions policy worked to Hogan’s disadvantage. Although Hogan could have attended classes and received credit in one of Mississippi’s state-supported coeducational nursing programs, none of which was located in Columbus, he could attend only by driving a considerable distance from his home. Tr. 19-20, 63-65. A similarly situated female would not have been required to choose between forgoing credit and bearing that inconvenience. Moreover, since many students enrolled in the School of Nursing hold full-time jobs, Deposition of Dean Annette K. Barrar 29-30, Hogan’s female colleagues had available an opportunity, not open to Hogan, to obtain credit for additional training. The policy of denying males the right to obtain credit toward a baccalaureate degree thus imposed upon Hogan “a burden he would not bear were he female.” Orr v. Orr, 440 U. S. 268, 273 (1979). In his dissenting opinion, Justice Powell argues that a less rigorous test should apply because Hogan does not advance a “serious equal protection claim.” Post, at 742. Justice Blackmun, without proposing an alternative test, labels the test applicable to gender-based discrimination as “rigid” and productive of “needless conformity.” Post, at 734, 735. Our past decisions establish, however, that when a classification expressly discriminates on the basis of gender, the analysis and level of scrutiny applied to determine the validity of the classification do not vary simply because the objective appears acceptable to individual Members of the Court. While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change. Thus, we apply the test previously relied upon by the Court to measure the constitutionality of gender-based discrimination. Because we conclude that the challenged statutory classification is not substantially related to an important objective, we need not decide whether classifications based upon gender are inherently suspect. See Stanton v. Stanton, 421 U. S. 7, 13 (1975). History provides numerous examples of legislative attempts to exclude women from particular areas simply because legislators believed women were less able than men to perform a particular function. In 1873, this Court remained unmoved by Myra Bradwell’s argument that the Fourteenth Amendment prohibited a State from classifying her as unfit to practice law simply because she was female. Bradwell v. Illinois, 16 Wall. 130 (1873). In his opinion concurring in the judgment, Justice Bradley described the reasons underlying the State’s decision to determine which positions only men could fill: “It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.” Id., at 142. In a similar vein, the Court in Goesaert v. Cleary, 335 U. S. 464, 466 (1948), upheld a legislature’s right to preclude women from bartending, except under limited circumstances, on the ground that the legislature could devise preventive measures against “moral and social problems” that result when women, but apparently not men, tend bar. Similarly, the many protective labor laws enacted in the late 19th and early 20th centuries often had as their objective the protection of weaker workers, which the laws assumed meant females. See generally B. Brown, A. Freedman, H. Katz, & A. Price, Women’s Rights and the Law 209-210 (1977). For instance, in Stanton v. Stanton, supra, this Court invalidated a state statute that specified a greater age of majority for males than for females and thereby affected the period during which a divorced parent was responsible for supporting his children. We did not question the importance or validity of the State’s interest in defining parents’ obligation to support children during their minority. On analysis, however, we determined that the purported relationship between that objective and the gender-based classification was based upon traditional assumptions that “the female [is] destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.... If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, is it for the girl.” 421 U. S., at 14-15. Once those traditional notions were abandoned, no basis for finding a substantial relationship between classification and objective remained. See, e. g., Kirchberg v. Feenstra, 450 U. S. 455 (1981) (statute granted only husbands the right to manage and dispose of jointly owned property without the spouse’s consent); Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142 (1980) (statute required a widower, but not a widow, to show he was incapacitated from earning to recover benefits for a spouse’s death under workers’ compensation laws); Orr v. Orr, supra (only men could be ordered to pay alimony following divorce); Craig v. Boren, 429 U. S. 190 (1976) (women could purchase “nonintoxieating” beer at a younger age than could men); Stanton v. Stanton, supra (women reached majority at an earlier age than did men); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975) (widows, but not widowers, could collect survivors’ benefits under the Social Security Act); Frontiero v. Richardson, 411 U. S. 677 (1973) (determination of spouse’s dependency based upon gender of member of Armed Forces claiming dependency benefits); Reed v. Reed, 404 U. S. 71 (1971) (statute preferred men to women as administrators of estates). In the reply brief, the State understandably retreated from its contention that MUW was founded to provide opportunities for women which were not available to men. Reply Brief for Petitioners 4. Apparently, the impetus for founding MUW came not from a desire to provide women with advantages superior to those offered men, but rather from a desire to provide white women in Mississippi access to state-supported higher learning. In 1856, Sally Reneau began agitating for a college for white women. Those initial efforts were unsuccessful, and, by 1870, Mississippi provided higher education only for white men and black men and women. E. Mayes, History of Education in Mississippi 178, 228, 245, 259, 266, 270 (1899) (hereinafter Mayes). See also S. Neilson, The History of Mississippi State College for Women 4r-5 (unpublished manuscript, 1952) (hereinafter Neil-son). In 1882, two years before MUW was chartered, the University of Mississippi opened its doors to women. However, the institution was in those early years not “extensively patronized by females; most of those who come being such as desire to qualify themselves to teach.” Mayes, at 178. By 1890, the largest number of women in any class at the University had been 23, while nearly 350 women enrolled in the first session of MUW. Id., at 178, 253. Because the University did not solicit the attendance of women until after 1920, and did not accept women at all for a time between 1907 and 1920, most Mississippi women who attended college attended MUW. Neilson, at 86. Thus, in Mississippi, as elsewhere in the country, women’s colleges were founded to provide some form of higher education for the academically disenfranchised. See generally 2 T. Woody, A History of Women’s Education in the United States 137-223 (1929); L. Baker, I’m Radcliffe! Fly Me! The Seven Sisters and the Failure of Women’s Education 22, 136-141 (1976). Relatively little change has taken place during the past 10 years. In 1980, women received more than 94 percent of the baccalaureate degrees conferred nationwide, National Center for Education Statistics, 1981 Digest of Education Statistics 121 (1981), and constituted 96.5 percent of the registered nurses in the labor force. United States Bureau of Census, 1981 Statistical Abstract of the United States 402 (1981). Officials of the American Nurses Association have suggested that excluding men from the field has depressed nurses’ wages. Hearings before the United States Equal Employment Opportunity Commission on Job Segregation and Wage Discrimination 510-511, 517-518, 523 (Apr. 1980). To the extent the exclusion of men has that effect, MUW’s admissions policy actually penalizes the very class the State purports to benefit. Cf. Weinberger v. Wiesenfeld, 420 U. S. 636 (1975). Even were we to assume that discrimination against women affects their opportunity to obtain an education or to obtain leadership roles in	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
NATIONAL LABOR RELATIONS BOARD et al. v. SEARS, ROEBUCK & CO. No. 73-1233. Argued January 14, 1975 Decided April 28, 1975 White, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, Marshall, Blackmun, and Rehnquist, JJ., joined. Burger, C. J., concurred in the judgment. Powell, J., took no part in the consideration or decision of the case. Deputy Solicitor General Friedman argued the cause for petitioners. With him on the briefs were Solicitor General Bork, Allan Abbot Tuttle, Peter G. Nash, John S. Irving, Patrick Hardin, and Norton J. Come. Gerard C. Smetana argued the cause for respondent. With him on the brief were Lawrence M. Cohen, Jeffrey S. Goldman, and Alan Raywid. Briefs of amici curiae urging affirmance were filed by Milton Smith and Jerry Kronenberg for the Chamber of Commerce of the United States; by Carol A. Cowgill, Peter H. Schuck, Marvin M. Karpatkin, and Melvin L. Wulj for the American Civil Liberties Union et al.; and by Alan B. Morrison for Freedom of Information Clearinghouse. Me. Justice White delivered the opinion of the Court. The National Labor Relations Board (the Board) and its General Counsel seek to set aside an order of the United States District Court directing disclosure to respondent, Sears, Roebuck & Co. (Sears), pursuant to the Freedom of Information Act, 5 U. S. C. § 552 (Act), of certain memoranda, known as “Advice Memoranda” and “Appeals Memoranda,” and related documents generated by the Office of the General Counsel in the course of deciding whether or not to permit the filing with the Board of unfair labor practice complaints. The Act’s background and its principal objectives are described in EPA v. Mink, 410 U. S. 73,79-80 (1973), and will not be repeated here. It is sufficient to note for present purposes that the Act seeks “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (hereinafter S. Rep. No. 813); EPA v. Mink, supra, at 80. As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act’s nine exemptions. Certain documents described in 5 U. S. C. § 552 (a)(1) such as “rules of procedure” must be published in the Federal Register; others, including “final opinions... made in the adjudication of cases,” “statements of policy and interpretations which have been adopted by the agency,” and “instructions to staff that affect a member of the public,” described in 5 U. S. C. § 552 (a)(2), must be indexed and made available to a member of the public on demand, H. R. Rep. No. 1497, 89th Cong., 2d Sess,, 8 (1966) (hereinafter H. R. Rep. No. 1497). Finally, and more comprehensively, all “identifiable records” must be made available to a member of the public on demand. 5 U. S. C. § 552 (a)(3). The Act expressly states, however, that the disclosure obligation “does not apply” to those documents described in the nine enumerated exempt categories listed in § 552 (b). Sears claims, and the courts below ruled, that the memoranda sought are expressions of legal and policy decisions already adopted by the agency and constitute “final opinions” and “instructions to staff that affect a member of the public,” both categories being expressly disclosable under § 552 (a)(2) of the Act, pursuant to its purposes to prevent the creation of “secret law.” In any event, Sears claims, the memoranda are nonexempt “identifiable records” which must be disclosed under § 552 (a)(3). The General Counsel, on the other hand, claims that the memoranda sought here are not final opinions under § 552 (a) (2) and that even if they are “identifiable records” otherwise disclosable under §552 (a)(3), they are exempt under § 552 (b), principally as “intra-agency” communications under §552 (b)(5) (Exemption 5), made in the course of formulating agency decisions on legal and policy matters. I Crucial to the decision of this case is an understanding of the function of the documents in issue in the context of the administrative process which generated them. We deal with this matter first. Under § 1 et seq. of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U. S. C. § 151 et seq., the process of adjudicating unfair labor practice cases begins with the filing by a private party of a “charge,”. §§ 3 (d) and 10 (b), 29 U. S. C. §§ 153 (d) and 160 (b); 29 CFR § 101.2 (1974); Auto Workers v. Scofield, 382 U. S. 205, 219 (1965); NLRB v. Indiana & Michigan Electric Co., 318 U. S. 9, 17-18 (1943). Although Congress has designated the Board as the principal body which adjudicates the unfair labor practice case based on such charge, 29 U. S. C. § 160, the Board may adjudicate only upon the filing of a “complaint” ; and Congress has delegated to the Office of General Counsel “on behalf of the Board” the unreviewable authority to determine whether a complaint shall be filed. 29 U. S. C. § 153 (d); Vaca v. Sipes, 386 U. S. 171, 182 (1967). In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration. In order to structure the considerable power which the administrative scheme gives him, the General Counsel has adopted certain procedures for processing unfair labor practice charges. Charges are filed in the first instance with one of the Board’s 31 Regional Directors, to whom the General Counsel has delegated the initial power to decide whether or not to issue a complaint. 29 CFR §§ 101.8, 102.10. A member of the staff of the Regional Office then conducts an investigation of the charge, which may include interviewing witnesses and reviewing documents. 29 CFR § 101.4. If, on the basis of the investigation, the Regional Director believes the charge has merit, a settlement will be attempted, or a complaint issued. If the charge has no merit in the Regional Director’s judgment, the charging party will be so informed by letter with a brief explanation of the reasons. 29 CFR §§ 101.6, 101.8, 102.16, 102.19. In such a case, the charging party will also be informed of his right to appeal within 10 days to the Office of the General Counsel in Washington, D. C. 29 CFR §§ 101.6, 102.19. If the charging party exercises this right, the entire file in the possession of the Regional Director will be sent to the Office of Appeals in the General Counsel’s Office in Washington, D. C. The case will be assigned to a staff attorney in the Office of Appeals, who prepares a memorandum containing an analysis of the factual and legal issues in the case. This memorandum is called an “agenda minute” and serves as the basis for discussion at a meeting of the “Appeals Committee,” which includes the Director and Associate Director of the Office of Appeals. At some point in this period, the charging party may make a written presentation of his case as of right and an oral presentation in the discretion of the General Counsel. 29 CFR § 102.19. If an oral presentation is allowed, the subject of the unfair labor practice charge is notified and allowed a similar but separate opportunity to make an oral presentation. In any event, a decision is reached by the Appeals Committee; and the decision and the reasons for it are set forth in a memorandum called the “General Counsel’s Minute” or the “Appeals Memorandum.” This document is then cleared through the General Counsel himself. If the case is unusually complex or important, the General Counsel will have been brought into the process at an earlier stage and will have had a hand in the decision and the expression of its basis in the Appeals Memorandum. In either event, the Appeals Memorandum is then sent to the Regional Director who follows its instructions. If the appeal is rejected and the Regional Director’s decision not to issue a complaint is sustained, a separate document is prepared and sent by the General Counsel in letter form to the charging party, more briefly setting forth the reasons for the denial of his appeal. The Appeals Memoranda, whether sustaining or overruling the Regional Directors, constitute one class of documents at issue in this case. The appeals process affords the General Counsel’s Office in Washington some opportunity to formulate a coherent policy; and to achieve some measure of uniformity, in enforcing the labor laws. The appeals process alone, however, is not wholly adequate for this purpose: when the Regional Director initially decides to file a complaint, no appeal is available; and when the Regional Director decides not to file a complaint, the charging party may neglect to appeal. Accordingly, to further “fair and uniform administration of the Act,” the General Counsel requires the Regional Directors, before reaching an initial decision in connection with charges raising certain issues specified by the General Counsel, to submit the matter to the General Counsel’s “Advice Branch,” also located in Washington, D. C. In yet other kinds of cases, the Regional Directors are permitted to seek the counsel of the Advice Branch. When a Regional Director seeks “advice” from the Advice Branch, he does so through a memorandum which sets forth the facts of the case, a statement of the issues on which advice is sought, and a recommendation. The case is then assigned to a staff attorney in the Advice Branch who researches the legal issues presented by reading prior Board and court decisions and “prior advice determinations in similar or related cases,” Statement 3076, and reports, orally or in writing, to a Committee or “agenda” made up of various high-ranking members of the General Counsel’s Office. The Committee recommendation is then arrived at and communicated to the General Counsel, together with the recommendation of the Regional Director and any dissenting views in the Committee. In special cases, the General Counsel may schedule special agendas and invite other staff members to submit their recommendations. In either event, the General Counsel will decide the issue submitted, and his “final determination” will be communicated to the Regional Director by way of an Advice Memorandum. The memorandum will briefly summarize the facts, against the background of which the legal or policy issue is to be decided, set forth the General Counsel’s answer to the legal or policy issue submitted together with a “detailed legal rationale,” and contain “instructions for the final processing of the case.” Ibid. Depending upon the. conclusion reached in the memorandum, the Regional Director will either file a complaint or send a letter to the complaining party advising him of the Regional Director’s decision not to proceed and informing him of his right to appeal. It is these Advice Memoranda which constitute the other class of documents of which Sears seeks disclosure in this case. II This case arose in the following context. By letter dated July 14, 1971, Sears requested that the General Counsel disclose to it pursuant to the Act all Advice and Appeals Memoranda issued within the previous five years on the subjects of “the propriety of withdrawals by employers or unions from multi-employer bargaining, disputes as to commencement date of negotiations, or conflicting interpretations in any other context of the Board’s Retail Associates (120 NLRB 388) rule.” The letter also sought the subject-matter index or digest of Advice and Appeals Memoranda. The letter urged disclosure on the theory that the Advice and Appeals Memoranda are the only source of agency “law” on some issues. By letter dated July 23, 1971, the General Counsel declined Sears’ disclosure request in full. The letter stated that Advice Memoranda are simply “guides for a Regional Director” and are not final; that they are exempt from disclosure under 5 U. S. C. § 552 (b) (5) as “intra-agency memoranda” which reflect the thought processes of the General Counsel’s staff; and that they are exempt pursuant to 5 U. S. C. § 552 (b) (7) as part of the “investigative process.” The letter said that Appeals Memoranda were not indexed by subject matter and, therefore, the General Counsel was “unable” to comply with Sears’ request. In further explanation of his decision, with respect to Appeals Memoranda, the General Counsel wrote to Sears on August 4,1971, and stated that Appeals Memoranda which ordered the filing of a complaint were not “final opinions.” The letter further stated that those Appeals Memoranda which were “final opinions, i. e., those in which an appeal was denied” and which directed that no complaint be filed, numbered several thousand, and that in the General Counsel’s view they had no precedential significance. Accordingly, if disclosable at all, they were disclosable under 5 U. S. C. § 552 (a)(3) relating to “identifiable records.” The General Counsel then said that Sears had failed adequately to identify the material sought and that he could not justify the expenditure of time necessary for the agency to identify them. On August 4, 1971, Sears filed a complaint pursuant to the Act seeking a declaration that the General Counsel’s refusal to disclose the Advice and Appeals Memoranda and indices thereof requested by Sears violated the Act, and an injunction enjoining continued violations of the Act. On August 24, 1971, the current General Counsel took office. In order to give him time to develop his own disclosure policy, the filing of his answer was postponed until February 3, 1972. The answer denied that the Act required disclosure of any of the documents sought but referred to a letter of the same date in which the General Counsel informed Sears that he would make available the index to Advice Memoranda and also all Advice and Appeals Memoranda in cases which had been closed — either because litigation before the Board had been completed or because a decision not to file a complaint had become final. He stated, however, that he would not disclose the memoranda in open cases; that he would, in any event, delete names of witnesses and “security sensitive” matter from the memoranda he did disclose; and that he did not consider the General Counsel’s Office bound to pursue this new policy “in all instances” in the future. Not wholly satisfied with the voluntary disclosures offered and made by the General Counsel, Sears moved for summary judgment and the General Counsel did likewise. Sears thus continued to seek memoranda in open cases. Moreover, Sears objected to the deletions in the memoranda in closed cases and asserted that many Appeals Memoranda were unintelligible because they incorporated by reference documents which were not themselves disclosed and also referred to “the ‘circumstances of the case’ ” which were not set out and about which Sears was ignorant. The General Counsel contended that all of the documents were exempt from disclosure as “intra-agency” memoranda within the coverage of 5 U. S. C. § 552 (b) (5); and that the documents incorporated by reference were exempt from disclosure as “investigatory files” pursuant to 5 U. S. C. § 552 (b)(7). The parties also did not agree as to the function of an Advice Memorandum. Sears claimed that Advice Memoranda are binding on Regional Directors. The General Counsel claimed that they are not, noting the fact that the Regional Director himself has the delegated power to issue a complaint. The District Court granted Sears’ motion for summary judgment and denied that of the General Counsel. The court found that, although the General Counsel had delegated to the Regional Directors the power to file complaints, an Advice Memorandum constituted a pro tanto withdrawal of the delegation of that power. Accordingly, Advice Memoranda were held to constitute “instructions to staff that affect a member of the public,” which are expressly disclosable pursuant to 5 U. S. C. § 552 (a)(2)(C). Appeals Memoranda were held to be “final opinions.” Both were held not to be “intra-agency memorandums” protected by 5 U. S. C. § 552 (b)(5), since they were not expressions “of a point of view” but the “disposition of a charge.” Documents incorporated by reference in the memoranda were held to have lost whatever exempt status they had previously. See American Mail Line, Ltd. v. Gulick, 133 U. S. App. D. C. 382, 389, 411 F. 2d 696, 703 (1969). The court then concluded that the case was a proper one for exercise of its injunctive powers under the Act, even though the General Counsel had voluntarily disclosed some of the material sought. The court noted that it had jurisdiction to enjoin the withholding of documents prospectively, in addition to ordering the production of documents already withheld. It referred to the fact that the General Counsel’s Office had a longstanding policy of nondisclosure and that it still maintained that the policy was lawful and that the current one of partial disclosure could be changed, and it referred to the fact that disputes had arisen about the deletions in the documents which had been disclosed voluntarily. Accordingly, the court ordered that the General Counsel (1) make available to the public all Appeals and Advice Memoranda issued since July 4, 1967, and any document expressly incorporated by reference (without apparently limiting the order to memoranda on the subject matter requested by Sears); (2) produce, and compile if necessary, indices of the memoranda; (3) produce explanatory material, including existing documents, in those instances in which a memorandum refers to the “circumstances of the case”; and (4) cease deleting names, citations, or matter other than settlement suggestions, from the memoranda without written justification. This decision was affirmed without opinion by the Court of Appeals for the District of Columbia Circuit on the basis of its decision in Grumman Aircraft Engineering Corp. v. Renegotiation Board, 157 U. S. App. D. C. 121, 482 F. 2d 710 (1973), rev’d, post, p. 168, and we granted certiorari, 417 U. S. 907 (1974), in both cases and set them for argument together to consider the important questions of the construction of the Act as they relate to documents generated by agency decisionmaking processes. Ill It is clear, and the General Counsel concedes, that Appeals and Advice Memoranda are at the least “identifiable records” which must be disclosed on demand, unless they fall within one of the Act’s exempt categories. It is also clear that, if the memoranda do fall within one of the Act’s exempt categories, our inquiry is at an end, for the Act “does not apply” to such documents. Thus our inquiry, strictly speaking, must be into the scope of the exemptions which the General Counsel claims to be applicable — principally Exemption 5 relating to “intra-agency memorandums.” The General Counsel also concedes, however, and we hold for the reasons set forth below, that Exemption 5 does not apply to any document which falls within the meaning of the phrase “final opinion... made in the adjudication of cases.” 5 U. S. C. § 552 (a)(2)(A). The General Counsel argues, therefore, as he must, that no Advice or Appeals Memorandum is a final opinion made in the adjudication of a case and that all are “intra-agency” memoranda within the coverage of Exemption 5. He bases this argument in large measure on what he claims to be his lack of adjudicative authority. It is true that the General Counsel lacks any authority finally to adjudicate an unfair labor practice claim in favor of the claimant; but he does possess the authority to adjudicate such a claim against the claimant through his power to decline to file a complaint with the Board. We hold for reasons more fully set forth below that those Advice and Appeals Memoranda which explain decisions by the General Counsel not to file a complaint are “final opinions” made in the adjudication of a case and fall outside the scope of Exemption 5; but that those Advice and Appeals Memoranda which explain decisions by the General Counsel to file a complaint and commence litigation before the Board are not “final opinions” made in the adjudication of a case and do fall within the scope of Exemption 5. A The parties are in apparent agreement that Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency. EPA v. Mink, 410 U. S., at 85-86. Since virtually any document not privileged may be discovered by the appropriate litigant, if it is relevant to his litigation, and since the Act clearly intended to give any member of the public as much right to disclosure as one with a special interest therein, id., at 79, 92; Sterling Drug, Inc. v. FTC, 146 U. S. App. D. C. 237, 243, 244, 450 F. 2d 698, 704, 705 (1971); S. Rep. No. 813, p. 5; H. R. Rep. No. 1497, p. 1, it is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context. The privileges claimed by petitioners to be relevant to this case are (i) the “generally... recognized” privilege for “confidential intra-agency advisory opinions...,” Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38, 49, 157 F. Supp. 939, 946 (1958) (Reed, J.), disclosure of which “would be ‘injurious to the consultative functions of government....’ Kaiser Aluminum & Chemical Corp., supra, at 49, 157 F. Supp., at 946,” EPA v. Mink, supra, at 86-87 (sometimes referred to as “executive privilege”), and (ii) the attorney-client and attorney work-product privileges generally available to all litigants. (i) That Congress had the Government’s executive privilege specifically in mind in adopting Exemption 5 is clear, S. Rep. No. 813, p. 9; H. R. Rep. No. 1497, p. 10; EPA v. Mink, supra, at 86. The precise contours of the privilege in the context of this case are less clear, but may be gleaned from expressions of legislative purpose and the prior case law. The cases uniformly rest the privilege on the policy of protecting the “decision making processes of government agencies,” Tennessean Newspapers, Inc. v. FHA, 464 F. 2d 657, 660 (CA6 1972); Carl Zeiss Stijtung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318 (DC 1966); see also EPA v. Mink, supra, at 86-87; International Paper Co. v. FPC, 438 F. 2d 1349, 1358-1359 (CA2 1971); Kaiser Aluminum & Chemical Corp. v. United States, supra, at 49, 157 F. Supp., at 946; and focus on documents “reflecting advisory opinions, recommendations and deliberations comprising part Of a process by which governmental decisions and policies are formulated.” Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, supra, at 324. The point, plainly made in the Senate Report, is that the “frank discussion of legal or policy matters” in writing might be inhibited if the discussion were made public; and that the “decisions” and “policies formulated” would be the poorer as a result. S. Rep. No. 813, p. 9. See also H. R. Rep. No. 1497, p. 10; EPA v. Mink, supra, at 87. As a lower court has pointed out, “there are enough incentives as it is for playing it safe and listing with the wind,” Ackerly v. Ley, 137 U. S. App. D. C. 133, 138, 420 F. 2d 1336, 1341 (1969), and as we have said in an analogous context, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances... to the detriment of the decisionmaking process.” United States v. Nixon, 418 U. S. 683, 705 (1974) (emphasis added). Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by the decisionmaker on the subject of the decision prior to the timé the decision is made. However, it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and the ingredients of the decisionmaking process are not disclosed. Accordingly, the lower courts have uniformly drawn a distinction between predecisional communications, which are privileged, e. g., Boeing Airplane Co. v. Coggeshall, 108 U. S. App. D. C. 106, 280 F. 2d 654 (1960); O’Keefe v. Boeing Co., 38 F. R. D. 329 (SDNY 1965); Walled Lake Door Co. v. United States, 31 F. R. D. 258 (ED Mich. 1962); Zacher v. United States, 227 F. 2d 219, 226 (CA8 1955), cert. denied, 350 U. S. 993 (1956); Clark v. Pear son, 238 F. Supp. 495, 496 (DC 1965); and communications made after the decision and designed to explain it, which are not. Sterling Drug, Inc. v. FTC, 146 U. S. App. D. C. 237, 450 F. 2d 698 (1971); GSA v. Benson, 415 F. 2d 878, 881 (CA9 1969); Bannercraft Clothing Co. v. Renegotiation Board, 151 U. S. App. D. C. 174, 466 F. 2d 345 (1972), rev’d on other grounds, 415 U. S. 1 (1974); Tennessean Newspapers, Inc. v. FHA, supra. See also S. Rep. No. 1219, 88th Cong., 2d Sess., 7 and 11. This distinction is supported not only by the lesser injury to the decisionmaking process flowing from disclosure of postdecisional communications, but also, in the case of those communications which explain the decision, by the increased public interest in knowing the basis for agency policy already adopted. The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted. These reasons, if expressed within the agency, constitute the “working law” of the agency and have been held by the lower courts to be outside the protection of Exemption 5. Bannercraft Clothing Co. v. Renegotiation Board, 151 U. S. App. D. C., at 181, 466 F. 2d, at 352; Cuneo v. Schlesinger, 157 U. S. App. D. C. 368, 484 F. 2d 1086 (1973), cert. denied sub nom. Rosen v. Vaughn, 415 U. S. 977 (1974); Ash Grove Cement Co. v. FTC, 371 F. Supp. 370 (1973), aff’d in part and rev’d in part, 167 U. S. App. D. C. 249, 511 F. 2d 815 (1975). Exemption 5, properly construed, calls for “disclosure of all 'opinions and interpretations’ which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967); Note, Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv. L. Rev. 1047 (1973). This conclusion is powerfully supported by the other provisions of the Act. The affirmative portion of the Act, expressly requiring indexing of “final opinions,” “statements of policy and interpretations which have been adopted by the agency,” and “instructions to staff that affect a member of the public,” 5 U. S. C. § 552 (a) (2), represents a strong congressional aversion to “secret [agency] law,” Davis, supra, at 797; and represents an affirmative congressional purpose to require disclosure of documents which have “the force and effect of law.” H. R. Rep. No. 1497, p. 7	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 81 ]	sc_adminaction
HORTON v. LIBERTY MUTUAL INSURANCE CO. No. 478. Argued May 3, 1961. Decided June 12, 1961. Joe H. Tonahill and William VanDercreek argued the cause and filed a brief for petitioner. Howell Cobb argued the cause for respondent. With him on the brief was Major T. Bell. Mr. Justice Black delivered the opinion of the Court. This case raises questions under that part of 28 U. S. C. § 1332, as amended in 1958, which grants jurisdiction to United States District Courts of all civil actions between citizens of different States “where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs . . . .” Petitioner, Horton, was injured while working for an employer in Texas insured by the respondent, Liberty Mutual Insurance Company. Pursuant to the Texas Workmen’s Compensation Law, petitioner filed a claim with the Texas Industrial Accident Board against his employer and the respondent insurance company alleging that he had been totally and permanently incapacitated and claiming the maximum recovery under the law of $35 per week for 401 weeks, or a total of $14,035. After administrative hearings the Board decided that petitioner would be disabled for only 30 weeks and accordingly made an award of only $1,050. Section 5 of Art. 8307 of the Texas Workmen’s Compensation Law permits either the employee or the insurance company, if dissatisfied with an award, to “bring suit in the county where the injury occurred to set aside said final ruling,” in which event the issues shall be determined “upon trial de novo, and the burden or [sic] proof shall be upon the party claiming compensation,” but in no event shall the court allow recovery in excess of the statutory maximum of $14,035. Acting under this provision of state law, the respondent, on April 30, 1959, the very day of the award, filed this diversity case in the United States District Court to set aside the award, alleging that petitioner had claimed, was claiming and would claim $14,035, but denying that petitioner was entitled to recover anything at all under Texas law. One week later the petitioner, who also was dissatisfied with the award, filed an action in the state court to set aside the Board’s award and to recover in that court the full $14,035. After that, petitioner moved to dismiss the respondent’s federal court suit on the ground that the value of the “matter in controversy” was only the amount of the award, $1,050, and not the amount of his claim of $14,035, although he also contemporaneously filed, subject to his motion to dismiss, what he designated as a compulsory counterclaim for the full amount he had claimed before the Texas Board and in his Texas State Court suit. The District Court held that the “matter in controversy” in the federal action was only the amount of the $1,050 award that the respondent company had asked the court to set aside. In so holding the District Court relied on National Surety Cory. v. Chamberlain, in which another District Court in Texas had reached the same conclusion as to jurisdiction largely on the basis of what it deemed to have been the purpose of Congress in enacting the 1958 amendment to 28 U. S. C. § 1332, which amendment rather severely cut down the jurisdiction of Federal District Courts, particularly in state workmen’s compensation cases. The Court of Appeals reversed, and we granted certiorari to decide the'important jurisdictional questions raised under the 1958 amendment. For reasons to be stated, we hold that the District Court has jurisdiction of the controversy. First. It is true, as the Chamberlain opinion pointed out, that the purpose and effect of the 1958 amendment were to reduce congestion in the Federal District Courts partially caused by the large number of civil cases that were being brought under the long-standing $3,000 jurisdictional rule. This effort to reduce District Court congestion followed years of study by the United States Judicial Conference and the Administrative Office of the United States Courts, as well as by the Congress. To accomplish this purpose the 1958 amendment took several different but related steps. It raised the requisite jurisdictional amount from $3,000 to $10,000 in diversity and federal question cases; it provided that a corporation is to be deemed a citizen not only of the State by which it was incorporated but also of the State where it has its principal place of business; and, most importantly here, it also for the first time forbade the removal of state workmen’s compensation cases from state courts to United States District Courts. By granting district judges a discretionary power to impose costs on a federal court plaintiff if he should “recover less than the sum or value of $10,000,” the amendment further manifested a congressional purpose to discourage the trying of suits involving less than $10,000 in federal courts. In discussing the question of state workmen’s compensation cases, the Senate Report on the amendment evidenced a concern not only about the problem of congestion in the federal courts, but also about trial burdens that claimants might suffer by having to go to trial in federal rather than state courts due to the fact that the state courts are likely to be closer to an injured worker’s home and may also provide him with special procedural advantages in workmen’s compensation cases. The foregoing are some of the appealing considerations that led the District Court to conclude that it would frustrate the congressional purpose to permit insurers to file workmen’s compensation suits in federal courts when Congress had deliberately provided that such suits could not be removed to federal courts if filed by claimants in state courts. But after the most deliberate study of the whole problem by lawyers and judges and after its consideration by lawyers on the Senate Judiciary Committee in the light of statistics on both removals and original filings, Congress used language specifically barring removal of such cases from state to federal courts and at the same time left unchanged the old language which just as specifically permits civil suits to be filed in federal courts in cases where there are both diversity of citizenship and the prescribed jurisdictional amount. In this situation we must take the intent of Congress with regard to the filing of diversity cases in Federal District Courts to be that which its language clearly sets forth. Congress could very easily have used language to bar filing of workmen’s compensation suits by the insurer as well as removal of such suits, and it could easily do so still. We therefore hold that under the present law the District Court has jurisdiction to try this civil case between citizens of different States if the matter in controversy is in excess of $10,000. Second. We agree with petitioner that determination of the value of the matter in controversy for purposes of federal jurisdiction is a federal question to be decided under federal standards, although the federal courts must, of course, look to state law to determine the nature and extent of the right to be enforced in a diversity case. It therefore is not controlling here that Texas has held that the crucial factor for allocating its cases among different state courts on an amount-in-controversy basis is the amount originally claimed before its State Compensation Board. The general federal rule has long been to decide what the amount in controversy is from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed “in good faith.” In deciding this question of good faith we have said that it “must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” The complaint of the respondent company filed in the District Court, while denying any liability at all and asking that the award of $1,050 against it be set aside, also alleges that petitioner Horton has claimed, now claims and will claim that he has suffered total and permanent disability and is entitled to a maximum recovery of $14,035, which, of course, is in excess of the $10,000 requisite to give a federal court jurisdiction of this controversy. No denial of these allegations in the complaint has been made, no attempted disclaimer or surrender of any part of the original claim has been made by petitioner, and there has been no other showing, let alone a showing “to a legal certainty,” of any lack of good faith on the part of the respondent in alleging that a $14,035 claim is in controversy. It would contradict the whole record as well as the allegations of the complaint to say that this dispute involves only $1,050. The claim before the Board was $14,035; the state court suit of petitioner asked that much; the conditional counterclaim in the federal court claims the same amount. Texas law under which this claim was created and has its being leaves the entire $14,035 claim open for adjudication in a de novo court trial, regardless of the award. Thus the record before us shows beyond a doubt that the award is challenged by both parties and is binding on neither; that petitioner claims more than $10,000 from the respondent and the respondent denies it should have to pay petitioner anything at all. No matter which party brings it into court, the controversy remains the same; it involves the same amount of money and is to be adjudicated and determined under the same rules. Unquestionably, therefore, the amount in controversy is in excess of $10,000. Third. Petitioner contends, however, that even though the amount in controversy is more than $10,000, the suit filed by the company is nothing more than an appeal from a state administrative order, that a Federal District Court has no appellate jurisdiction and that the dismissal of the case by the District Court therefore is supportable on that ground. This contention rests almost entirely on Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574, 581, which held that a United States District Court was without jurisdiction to consider an appeal “taken administratively or judicially in a state proceeding.” Aside from many other relevant distinctions which need not be pointed out, the Stude case is without weight here because, as shown by the Texas Supreme Court’s interpretation of its compensation act: “The suit to set aside an award of the board is in fact a suit, not an appeal. It is filed as any other suit is filed and when filed the subject matter is withdrawn from the board.” It is true that as conditions precedent to filing a suit a claim must have been filed with the Board and the Board must have made a final ruling and decision. But the trial in court is not an appellate proceeding. It is a trial de novo wholly without reference to what may have been decided by the Board. The Court of Appeals was right in holding that the District Court had jurisdiction of this case and its judgment is Affirmed. Act of July 25, 1958, 72 Stat. 415. Vernon’s Tex Ann. Civ. Stat., Arts. 8306-8309. With exceptions not here relevant, Rule 13 (a) of the Federal Rules of Civil Procedure requires a party to file a counterclaim arising out of the transaction or occurrence that is the subject of the opposing party’s claim. 171 F. Supp. 591. 275 F. 2d 148. 364 U. S. 814. See H. It. Rep. No. 1706, 85th Cong., 2d Sess.; S. Rep. No. 1830, 85th Cong., 2d Sess.; Hearings on H. R. 2516 and H. R. 4497, Subcommittee of House Committee on the Judiciary, 85th Cong., 1st Sess. With particular reference to the provision barring removal of state workmen’s compensation cases, see 104 Cong. Rec. 12689— 12690; S. Rep. No. 1830, supra, p. 9; Annual Report of the Proceedings of the Judicial Conference of the United States, 1957, p. 15. S. Rep. No. 1830, 85th Cong., 2d Sess., pp. 8-9. See, id., p. 8. See, e. g., Shamrock Oil Corp. v. Sheets, 313 U. S. 100, 104. Booth v. Texas Employers’ Ins. Assn., 132 Tex. 237, 252, 123 S. W. 2d 322, 331. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 288, and cases there cited. Id., at 289. See also Bell v. Preferred Life Assurance Society, 320 U. S. 238, 240; Aetna Casualty Co. v. Flowers, 330 U. S. 464, 468. Booth v. Texas Employers’ Ins. Assn., 132 Tex. 237, 246, 123 S. W. 2d 322, 328. The character of the lawsuit is further illuminated by decisions of the Texas Supreme Court holding that the administrative award becomes vacated and unenforceable once the court has acquired jurisdiction of the cause and the parties even if a voluntary nonsuit is taken and the case dismissed without judgment on the merits. Zurich General Accident Co. v. Rodgers, 128 Tex. 313, 97 S. W. 2d 674; Texas Reciprocal Ins. Assn. v. Leger, 128 Tex. 319, 97 S. W. 2d 677. This makes it all the more clear that the matter in controversy between the parties to the suit is not merely whether the award will be set aside since the suit automatically sets it aside for determination of liability de novo.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
RAYTHEON CO. v. HERNANDEZ No. 02-749. Argued October 8, 2003 Decided December 2, 2003 Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Souter, J.,.who took no part in the decision of the case, and Breyer, J., who took no part in the consideration or decision of the case. Carter G. Phillips argued the cause for petitioner. With him on the briefs were Alan Charles Raul, Paul Grossman, Paul W. Cane, Jr., Neal D. Mollen, Jay B. Stephens, and Ronald Stolkin. Deputy Solicitor General Clement argued the cause for the United States as amicus curia# urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, John P. Elwood, David K. Flynn, and Sarah E. Harrington. Stephen G. Montoya argued the cause and filed a brief for respondent. Ann Elizabeth Reesman, Stephen A. Bokat, Robin S. Conrad, and Ellen D. Bryant filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Betty Ford Center et al. by David T Goldberg and Daniel N. Abrahamson; and for the National Employment Lawyers Association et al. by Claudia Center, Brian East, Terisa E. Chaw, and Arlene Mayerson. Justice Thomas delivered the opinion of the Court. The Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, as amended, 42 U. S. C. § 12101 et seq., makes it unlawful for an employer, with respect to hiring, to “discriminate against a qualified individual with a disability because of the disability of such individual.” § 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer’s unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. 537 U. S. 1187 (2003). J — I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years. On July 11, 1991, respondent’s appearance and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent’s behavior violated petitioner’s workplace conduct rules, respondent was forced to resign. Respondent’s “Employee Separation Summary” indicated as the reason for separation: “discharge for personal conduct (quit in lieu of discharge).” App. 12a. More than two years later, on January 24,1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a “faithful and active member” of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. Id., at 13a~15a. Joanne Bockmiller, an employee in the company’s Labor Relations Department, reviewed respondent’s application. Bockmiller testified in her deposition that since respondent’s application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent’s application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. Id., at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent’s application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a “record of” addiction. Id., at 63a-64a. Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent’s charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote: “The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. • Contrary' to Complainant’s unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant’s application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation. “The Company maintains it’s [sic] right to deny reemployment to employees terminated for violation of Company rules and regulations. . . . Complainant has provided no evidence to alter the Company’s position that Complainant’s conduct while employed by [petitioner] makes him ineligible for rehire.” Id., at 19a-20a. This response, together with evidence that the letters submitted with respondent’s employment application may have alerted Bockmiller to the reason for respondent’s prior termination, led the EEOC to conclude that petitioner may have “rejected [respondent’s] application based on his record of past alcohol and drug use.” Id., at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was “reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability.” Id., at 95a. The EEOC issued a right-to-sue letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U. S. C. §§ 12102(2)(B)-(C). In response to petitioner’s motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner’s motion for summary judgment with respect to respondent’s disparate-treatment claim. However, the District Court refused to consider respondent’s disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. Hernandez v. Hughes Missile Systems Co., 298 F. 3d 1030, 1037, n. 20 (CA9 2002). In addressing respondent’s disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas Cory. v. Green, 411 U. S. 792 (1973). First, the Ninth Circuit found that with respect to respondent’s prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner’s refusal to rehire him was his past record of drug addiction. 298 F. 3d, at 1034-1035. The Court of Appeals thus held that with respect to respondent’s prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Id.,' at 1035. Because petitioner does not challenge this aspect of the Ninth Circuit’s decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. 411 U. S., at 802. Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner’s no-rehire rule was lawful on its face, held the policy to be unlawful “as applied to former drug addicts whose only work-related offense was testing positive because of their addiction.” 298 F. 3d, at 1036. The Court of Appeals concluded that petitioner’s application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent’s application: “Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the ‘disability and thus of the fact that she is committing an unlawful act. . . . Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA.” Id., at 1036-1037. In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent’s prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, nondiscriminatory reason under the ADA. And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that “petitioner’s stated reason for respondent’s rejection was in fact pretext.” McDonnell Douglas, supra, at 804. II. This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that “ ‘[djisparate treatment’ ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic].” Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977). See also Hazen Paper Co. v. Biggins, 507 U. S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case “depends on whether the protected trait . . . actually motivated the employer’s decision.” Id., at 610. By contrast, disparate-impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, supra, at 335-336, n. 15. Under a disparate-impact theory of discrimination, “a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of the employer’s subjective intent to discriminate that is required in a ‘disparate-treatment’ case.” Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 645-646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, § 105, 105 Stat. 1074-1075, 42 U. S. C. §2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U. S. C. § 12112(b) (defining “discriminate” to include “utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability” and “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability”). Because “the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes,” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252, n. 5 (1981), courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent’s case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent’s record of a disability. 298 F, 3d, at 1037, n. 20. Petitioner’s proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiseriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent’s status as disabled despite petitioner’s proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination. The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner’s policy “screens out persons with a record of addiction,” and further noted that the company had not raised a business necessity defense, 298 F. 3d, at 1036-1087, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e. g., Grano v. Department of Development of Columbus, 637 F. 2d 1073, 1081 (CA6 1980) (“In a disparate impact situation . . . the issue is whether a neutral selection device ... screens out disproportionate numbers of [the protected class]”). By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner’s no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent’s application, petitioner’s decision not to rehire respondent can, in no way, be said to have been motivated by respondent’s disability. The Court of Appeals rejected petitioner’s legitimate, nondiscriminatory reason for refusing to rehire respondent because it “serves to bar the re-employment of a drug addict despite his successful rehabilitation.” 298 F. 3d, at 1036-1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent’s disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Souter took no part in the decision of this case. Justice Breyer took no part in the consideration or decision of this case. Hughes has since been acquired by petitioner, Raytheon Company. For the sake of clarity, we refer to Hughes and Raytheon collectively as petitioner or the company. The ADA defines the term “disability” as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;' “(B) a record of such an impairment; or “(C) being regarded as having such an impairment.” 42 U. S. C. § 12102(2). The Court in McDonnell Douglas set forth a burden-shifting scheme for discriminatory-treatment cases. Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action^ 411 U. S., at 802. If the employer meets this burden, the presumption of intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer’s explanation is pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 143 (2000). The Courts of Appeals have consistently utilized this burden-shifting approach when reviewing motions for summary judgment in disparate-treatment cases. See, e. g., Pugh v. Attica, 259 F. 3d 619, 626 (CA7 2001) (applying burden-shifting approach to an ADA disparate-treatment claim). The Court of Appeals noted that “it is possible that a drug user may not be ‘disabled’ under the ADA if his drug use does not rise to the level of an addiction which substantially limits one or more of his major life activities.” 298 F. 3d, at 1033-1034, n. 9. The parties do not dispute that respondent was “disabled” at the time he quit in lieu of discharge and thus a record of the disability exists. We therefore need not decide in this case whether respondent’s employment record constitutes a “record of addiction,” which triggers the protections of the ADA. The parties are also not disputing in this Court whether respondent was qualified for the position for which he applied. This would not, of course, resolve the dispute over whether petitioner did in fact apply such a policy in this case. Indeed, the Court of Appeals expressed some confusion on this point, as the court first held that respondent “raise[d] a genuine issue of material fact as to whether he was denied re-employment because of his past record of drug addiction,” id,., at 1034, but then later stated that there was “no question that [petitioner] applied this [no-rehire] policy in rejecting [respondent’s] application,” id., at 1036, n. 17. The Court of Appeals characterized respondent’s workplace misconduct as merely “testing positive because of [his] addiction.” 298 F. 3d, at 1036. To the extent that the court suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 611 (1993). Indeed, despite the fact that the Nation’s antidiscrimination laws are undoubtedly aimed at “the problem of inaccurate and stigmatizing stereotypes,” ibid., the Court of Appeals held that the unfortunate result of petitioner’s application of its neutral policy was that Bockmiller may have made the employment decision in this case “remaining unaware of [respondent’s] ‘disability.’” 298 F. 3d, at 1036. The Court of Appeals did not explain, however, how it could be said that Bockmiller was motivated to reject respondent’s application because of his disability if Bockmiller was entirely unaware that such a disability existed. If Bockmiller were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on respondent’s disability. And, if no part of the hiring decision turned on respondent’s status as disabled, he cannot, ipso facto, have been subject to disparate treatment.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
Joseph MATAL, Interim Director, United States Patent and Trademark Office, Petitioner v. Simon Shiao TAM. No. 15-1293. Supreme Court of the United States Argued Jan. 18, 2017. Decided June 19, 2017. Malcolm L. Stewart, Washington, DC, for Petitioner. John C. Connell, Haddonfield, NJ, for Respondent. Sarah Harris, General Counsel, Nathan K. Kelley, Solicitor, Thomas W. Krause, Deputy Solicitor, Christina J. Hieber, Thomas L. Casagrande, Molly R. Silfen, Mary Beth Walker, Associate Solicitors, U.S. Patent and Trademark Office, Alexandria, VA, Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant, Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Nicole A. Saharsky, Assistant to the Solicitor General, Douglas N. Letter, Mark R. Freeman, Daniel Tenny, Joshua M. Salzman, Attorneys, Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Washington, DC, for Petitioner. Stuart Banner, Eugene Volokh, UCLA School of Law, Supreme Court Clinic, Los Angeles, CA, John C. Connell, Ronald D. Coleman, Joel G. MacMull, Archer & Greiner, P.C., Haddonfield, NJ, for Respondent. Justice ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, and an opinion with respect to Parts III-B, III-C, and IV, in which THE CHIEF JUSTICE, Justice THOMAS, and Justice BREYER join. This case concerns a dance-rock band's application for federal trademark registration of the band's name, "The Slants." "Slants" is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to "reclaim" the term and drain its denigrating force. The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may "disparage... or bring... into contemp[t] or disrepute" any "persons, living or dead." 15 U.S.C. § 1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. I A "The principle underlying trademark protection is that distinctive marks-words, names, symbols, and the like-can help distinguish a particular artisan's goods from those of others." B & B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ----, ----, 135 S.Ct. 1293, 1299, 191 L.Ed.2d 222 (2015) ; see also Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 212, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). A trademark "designate [s] the goods as the product of a particular trader" and "protect[s] his good will against the sale of another's product as his." United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 63 L.Ed. 141 (1918) ; see also Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412-413, 36 S.Ct. 357, 60 L.Ed. 713 (1916). It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid. See Wal-Mart Stores, supra, at 212-213, 120 S.Ct. 1339 ; Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 198, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). "[F]ederal law does not create trademarks." B & B Hardware, supra, at ----, 135 S.Ct., at 1299. Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. 3 J. McCarthy, Trademarks and Unfair Competition § 19:8 (4th ed. 2017) (hereinafter McCarthy); 1 id., §§ 5:1, 5:2, 5:3; Pattishall, The Constitutional Foundations of American Trademark Law, 78 Trademark Rep. 456, 457-458 (1988); Pattishall, Two Hundred Years of American Trademark Law, 68 Trademark Rep. 121, 121-123 (1978); see Trade-Mark Cases, 100 U.S. 82, 92, 25 L.Ed. 550 (1879). For most of the 19th century, trademark protection was the province of the States. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 780-782, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (Stevens, J., concurring in judgment); id., at 785, 112 S.Ct. 2753 (THOMAS, J., concurring in judgment). Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. See Act of July 8, 1870, §§ 77-84, 16 Stat. 210-212. The foundation of current federal trademark law is the Lanham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. By that time, trademark had expanded far beyond phrases that do no more than identify a good or service. Then, as now, trademarks often consisted of catchy phrases that convey a message. Under the Lanham Act, trademarks that are "used in commerce" may be placed on the "principal register," that is, they may be federally registered. 15 U.S.C. § 1051(a)(1). And some marks "capable of distinguishing [an] applicant's goods or services and not registrable on the principal register... which are in lawful use in commerce by the owner thereof" may instead be placed on a different federal register: the supplemental register. § 1091(a). There are now more than two million marks that have active federal certificates of registration. PTO Performance and Accountability Report, Fiscal Year 2016, p. 192 (Table 15), https://www.uspto.gov/sites/default/files/ documents/USPTOFY16PAR.pdf (all Internet materials as last visited June 16, 2017). This system of federal registration helps to ensure that trademarks are fully protected and supports the free flow of commerce. "[N]ational protection of trademarks is desirable," we have explained, "because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation." San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 531, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (internal quotation marks omitted); see also Park 'N Fly, Inc., supra, at 198, 105 S.Ct. 658 ("The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers"). B Without federal registration, a valid trademark may still be used in commerce. See 3 McCarthy § 19:8. And an unregistered trademark can be enforced against would-be infringers in several ways. Most important, even if a trademark is not federally registered, it may still be enforceable under § 43(a) of the Lanham Act, which creates a federal cause of action for trademark infringement. See Two Pesos, supra, at 768, 112 S.Ct. 2753 ("Section 43(a) prohibits a broader range of practices than does § 32, which applies to registered marks, but it is common ground that § 43(a) protects qualifying unregistered trademarks" (internal quotation marks and citation omitted)). Unregistered trademarks may also be entitled to protection under other federal statutes, such as the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). See 5 McCarthy § 25A:49, at 25A-198 ("[T]here is no requirement [in the Anticybersquatting Act] that the protected'mark' be registered: unregistered common law marks are protected by the Act"). And an unregistered trademark can be enforced under state common law, or if it has been registered in a State, under that State's registration system. See 3 id., § 19:3, at 19-23 (explaining that "[t]he federal system of registration and protection does not preempt parallel state law protection, either by state common law or state registration" and "[i]n the vast majority of situations, federal and state trademark law peacefully coexist"); id., § 22:1 (discussing state trademark registration systems). Federal registration, however, "confers important legal rights and benefits on trademark owners who register their marks." B & B Hardware, 575 U.S., at ----, 135 S.Ct., at 1317 (internal quotation marks omitted). Registration on the principal register (1) "serves as 'constructive notice of the registrant's claim of ownership' of the mark," ibid. (quoting 15 U.S.C. § 1072 ); (2) "is 'prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner's ownership of the mark, and of the owner's exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate,' " B & B Hardware, 575 U.S. at ----, 135 S.Ct., at 1300 (quoting § 1057(b) ); and (3) can make a mark " 'incontestable' " once a mark has been registered for five years," ibid. (quoting §§ 1065, 1115(b) ); see Park 'N Fly, 469 U.S., at 193, 105 S.Ct. 658. Registration also enables the trademark holder "to stop the importation into the United States of articles bearing an infringing mark." 3 McCarthy § 19:9, at 19-38; see 15 U.S.C. § 1124. C The Lanham Act contains provisions that bar certain trademarks from the principal register. For example, a trademark cannot be registered if it is "merely descriptive or deceptively misdescriptive" of goods, § 1052(e)(1), or if it is so similar to an already registered trademark or trade name that it is "likely... to cause confusion, or to cause mistake, or to deceive," § 1052(d). At issue in this case is one such provision, which we will call "the disparagement clause." This provision prohibits the registration of a trademark "which may disparage... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." § 1052(a). This clause appeared in the original Lanham Act and has remained the same to this day. See § 2(a), 60 Stat. 428. When deciding whether a trademark is disparaging, an examiner at the PTO generally applies a "two-part test." The examiner first considers "the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services." Trademark Manual of Examining Procedure § 1203.03(b)(i) (Apr. 2017), p. 1200-150, http://tmep.uspto.gov. "If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols," the examiner moves to the second step, asking "whether that meaning may be disparaging to a substantial composite of the referenced group." Ibid. If the examiner finds that a "substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark... to be disparaging in the context of contemporary attitudes," a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that the trademark is not disparaging. Ibid. What is more, the PTO has specified that "[t]he fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the referenced group would find the term objectionable." Ibid. D Simon Tam is the lead singer of "The Slants." In re Tam, 808 F.3d 1321, 1331 (C.A.Fed.2015) (en banc), as corrected (Feb. 11, 2016). He chose this moniker in order to "reclaim" and "take ownership" of stereotypes about people of Asian ethnicity. Ibid. (internal quotation marks omitted). The group "draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes" and has given its albums names such as "The Yellow Album" and "Slanted Eyes, Slanted Hearts." Ibid. Tam sought federal registration of "THE SLANTS," on the principal register, App. 17, but an examining attorney at the PTO rejected the request, applying the PTO's two-part framework and finding that "there is... a substantial composite of persons who find the term in the applied-for mark offensive." Id., at 30. The examining attorney relied in part on the fact that "numerous dictionaries define'slants' or'slant-eyes' as a derogatory or offensive term." Id., at 29. The examining attorney also relied on a finding that "the band's name has been found offensive numerous times"-citing a performance that was canceled because of the band's moniker and the fact that "several bloggers and commenters to articles on the band have indicated that they find the term and the applied-for mark offensive." Id., at 29-30. Tam contested the denial of registration before the examining attorney and before the PTO's Trademark Trial and Appeal Board (TTAB) but to no avail. Eventually, he took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment's Free Speech Clause. The majority found that the clause engages in viewpoint-based discrimination, that the clause regulates the expressive component of trademarks and consequently cannot be treated as commercial speech, and that the clause is subject to and cannot satisfy strict scrutiny. See 808 F.3d, at 1334-1339. The majority also rejected the Government's argument that registered trademarks constitute government speech, as well as the Government's contention that federal registration is a form of government subsidy. See id., at 1339-1355. And the majority opined that even if the disparagement clause were analyzed under this Court's commercial speech cases, the clause would fail the "intermediate scrutiny" that those cases prescribe. See id., at 1355-1357. Several judges wrote separately, advancing an assortment of theories. Concurring, Judge O'Malley agreed with the majority's reasoning but added that the disparagement clause is unconstitutionally vague. See id., at 1358-1363. Judge Dyk concurred in part and dissented in part. He argued that trademark registration is a government subsidy and that the disparagement clause is facially constitutional, but he found the clause unconstitutional as applied to THE SLANTS because that mark constitutes "core expression" and was not adopted for the purpose of disparaging Asian-Americans. See id., at 1363-1374. In dissent, Judge Lourie agreed with Judge Dyk that the clause is facially constitutional but concluded for a variety of reasons that it is also constitutional as applied in this case. See id., at 1374-1376. Judge Reyna also dissented, maintaining that trademarks are commercial speech and that the disparagement clause survives intermediate scrutiny because it "directly advances the government's substantial interest in the orderly flow of commerce." See id., at 1376-1382. The Government filed a petition for certiorari, which we granted in order to decide whether the disparagement clause "is facially invalid under the Free Speech Clause of the First Amendment." Pet. for Cert. i; see sub. nom. Lee v. Tam, 579 U.S. ----, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016). II Before reaching the question whether the disparagement clause violates the First Amendment, we consider Tam's argument that the clause does not reach marks that disparage racial or ethnic groups. The clause prohibits the registration of marks that disparage "persons," and Tam claims that the term "persons" "includes only natural and juristic persons," not "non-juristic entities such as racial and ethnic groups." Brief for Respondent 46. Tam never raised this argument before the PTO or the Federal Circuit, and we declined to grant certiorari on this question when Tam asked us to do so, see Brief Responding to Petition for Certiorari, pp. i, 17-21. Normally, that would be the end of the matter in this Court. See, e.g., Yee v. Escondido, 503 U.S. 519, 534-538, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) ; Freytag v. Commissioner, 501 U.S. 868, 894-895, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment). But as the Government pointed out in connection with its petition for certiorari, accepting Tam's statutory interpretation would resolve this case and leave the First Amendment question for another day. See Reply Brief 9. "[W]e have often stressed" that it is "importan[t] [to] avoid[d] the premature adjudication of constitutional questions," Clinton v. Jones, 520 U.S. 681, 690, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), and that "we ought not to pass on questions of constitutionality... unless such adjudication is unavoidable," Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944). See also Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945) ; Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905). We thus begin by explaining why Tam's argument about the definition of "persons" in the Lanham Act is meritless. As noted, the disparagement clause prohibits the registration of trademarks "which may disparage... persons, living or dead." 15 U.S.C. § 1052(a). Tam points to a definition of "person" in the Lanham Act, which provides that "[i]n the construction of this chapter, unless the contrary is plainly apparent from the context... [t]he term 'person' and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this chapter includes a juristic person as well as a natural person." § 1127. Because racial and ethnic groups are neither natural nor "juristic" persons, Tam asserts, these groups fall outside this definition. Brief for Respondent 46-48. Tam's argument is refuted by the plain terms of the disparagement clause. The clause applies to marks that disparage "persons." A mark that disparages a "substantial" percentage of the members of a racial or ethnic group, Trademark Manual § 1203.03(b)(i), at 1200-150, necessarily disparages many "persons," namely, members of that group. Tam's argument would fail even if the clause used the singular term "person," but Congress' use of the plural "persons" makes the point doubly clear. Tam's narrow reading of the term "persons" also clashes with the breadth of the disparagement clause. By its terms, the clause applies to marks that disparage, not just "persons," but also "institutions" and "beliefs." 15 U.S.C. § 1052(a). It thus applies to the members of any group whose members share particular "beliefs," such as political, ideological, and religious groups. It applies to marks that denigrate "institutions," and on Tam's reading, it also reaches "juristic" persons such as corporations, unions, and other unincorporated associations. See § 1127. Thus, the clause is not limited to marks that disparage a particular natural person. If Congress had wanted to confine the reach of the disparagement clause in the way that Tam suggests, it would have been easy to do so. A neighboring provision of the Lanham Act denies registration to any trademark that "[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent." § 1052(c) (emphasis added). Tam contends that his interpretation of the disparagement clause is supported by its legislative history and by the PTO's willingness for many years to register marks that plainly denigrated African-Americans and Native Americans. These arguments are unpersuasive. As always, our inquiry into the meaning of the statute's text ceases when "the statutory language is unambiguous and the statutory scheme is coherent and consistent." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (internal quotation marks omitted). Here, it is clear that the prohibition against registering trademarks "which may disparage... persons," § 1052(a), prohibits registration of terms that disparage persons who share a common race or ethnicity. Even if resort to legislative history and early enforcement practice were appropriate, we would find Tam's arguments unconvincing. Tam has not brought to our attention any evidence in the legislative history showing that Congress meant to adopt his interpretation. And the practice of the PTO in the years following the enactment of the disparagement clause is unenlightening. The admitted vagueness of the disparagement test and the huge volume of applications have produced a haphazard record of enforcement. (Even today, the principal register is replete with marks that many would regard as disparaging to racial and ethnic groups. ) Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors-most likely the regrettable attitudes and sensibilities of the time in question. III Because the disparagement clause applies to marks that disparage the members of a racial or ethnic group, we must decide whether the clause violates the Free Speech Clause of the First Amendment. And at the outset, we must consider three arguments that would either eliminate any First Amendment protection or result in highly permissive rational-basis review. Specifically, the Government contends (1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new "government-program" doctrine. We address each of these arguments below. A The First Amendment prohibits Congress and other government entities and actors from "abridging the freedom of speech"; the First Amendment does not say that Congress and other government entities must abridge their own ability to speak freely. And our cases recognize that "[t]he Free Speech Clause... does not regulate government speech." Pleasant Grove City v. Summum, 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ; see Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) ("[T]he Government's own speech... is exempt from First Amendment scrutiny"); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 235, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). As we have said, "it is not easy to imagine how government could function" if it were subject to the restrictions that the First Amendment imposes on private speech. Summum, supra, at 468, 129 S.Ct. 1125 ; see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ----, ---- - ----, 135 S.Ct. 2239, 2245-2247, 192 L.Ed.2d 274 (2015). " '[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,' " Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), but imposing a requirement of viewpoint-neutrality on government speech would be paralyzing. When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others. The Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak about that venture. Here is a simple example. During the Second World War, the Federal Government produced and distributed millions of posters to promote the war effort. There were posters urging enlistment, the purchase of war bonds, and the conservation of scarce resources. These posters expressed a viewpoint, but the First Amendment did not demand that the Government balance the message of these posters by producing and distributing posters encouraging Americans to refrain from engaging in these activities. But while the government-speech doctrine is important-indeed, essential-it is a doctrine that is susceptible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents. At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U.S.C. § 1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act's viewpoint-neutral requirements, registration is mandatory. Ibid. (requiring that "[n]o trademark... shall be refused registration on the principal register on account of its nature unless" it falls within an enumerated statutory exception). And if an examiner finds that a mark is eligible for placement on the principal register, that decision is not reviewed by any higher official unless the registration is challenged. See §§ 1062(a), 1071; 37 C.F.R § 41.31(a) (2016). Moreover, once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. See 15 U.S.C. §§ 1058(a), 1059, 1064 ; 37 C.F.R. §§ 2.111(b), 2.160. In light of all this, it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. See App. to Brief for Pro-Football, Inc., as Amicus Curiae. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public. For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to "make.believe" (Sony), "Think different" (Apple), "Just do it" (Nike), or "Have it your way" (Burger King)? Was the Government warning about a coming disaster when it registered the mark "EndTime Ministries"? The PTO has made it clear that registration does not constitute approval of a mark. See In re Old Glory Condom Corp., 26 USPQ 2d 1216, 1220, n. 3 (T.T.A.B.1993) ("[I]ssuance of a trademark registration... is not a government imprimatur"). And it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark means. See Application of National Distillers & Chemical Corp., 49 C.C.P.A. (Pat.) 854, 863, 297 F.2d 941, 949 (1962) (Rich, J., concurring) ("The purchasing public knows no more about trademark registrations than a man walking down the street in a strange city knows about legal title to the land and buildings he passes" (emphasis deleted)). None of our government speech cases even remotely supports the idea that registered trademarks are government speech. In Johanns, we considered advertisements promoting the sale of beef products. A federal statute called for the creation of a program of paid advertising " 'to advance the image and desirability of beef and beef products	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 93 ]	sc_adminaction
ANDERSON v. CITY OF BESSEMER CITY, NORTH CAROLINA No. 83-1623. Argued December 3, 1984 Decided March 19, 1985 White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Powell, Rehnquist, Stevens, and O’Con-nor, JJ., joined. Powell, J., filed a concurring opinion, post, p. 581. Blackmun, J., filed an opinion concurring in the judgment, post, p. 581. Jonathan Wallas argued the cause for petitioner. With him on the briefs were John T. Nockelby, J. LeVonne Chambers, 0. Peter Sherwood, and Eric Schnapper. Carolyn S. Corwin argued the cause for the United States et al. as amici curiae urging reversal. With her on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Johnny J. Butler, and Philip B. Sklover. Philip M. Van Hoy argued the cause for respondent. With him on the brief were Eugene Gressman and Arthur C. Blue III JoanE. Bertin, E. Richard Larson, Burt Neubome, and Isabelle Katz Pinzler filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Justice White delivered the opinion of the Court. In Pullman-Standard v. Swint, 456 U. S. 273 (1982), we held that a District Court’s finding of discriminatory intent in an action brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., is a factual finding that may be overturned on appeal only if it is clearly erroneous. In this case, the Court of Appeals for the Fourth Circuit concluded that there was clear error in a District Court’s finding of discrimination and reversed. Because our reading of the record convinces us that the Court of Appeals misapprehended and misapplied the clearly-erroneous standard, we reverse. H Early m 1975, officials of respondent Bessemer City, North Carolina, set about to hire a new Recreation Director for the city. Although the duties that went with the position were not precisely delineated, the new Recreation Director was to be responsible for managing all of the city’s recreational facilities and for developing recreational programs — athletic and otherwise — to serve the needs of the city’s residents. A five-member committee selected by the Mayor was responsible for choosing the Recreation Director. Of the five members, four were men; the one woman on the committee, Mrs. Auddie Boone, served as the chairperson. Eight persons applied for the position of Recreation Director. Petitioner, at the time a 39-year-old schoolteacher with college degrees in social studies and education, was the only woman among the eight. The selection committee reviewed the resumés submitted by the applicants and briefly interviewed each of the jobseekers. Following the interviews, the committee offered the position to Mr. Donald Kincaid, a 24-year-old who had recently graduated from college with a degree in physical education. All four men on the committee voted to offer the job to Mr. Kincaid; Mrs. Boone voted for petitioner. Believing that the committee had passed over her in favor of a less qualified candidate solely because she was a woman, petitioner filed discrimination charges with the Charlotte District Office of the Equal Employment Opportunity Commission. In July 1980 (five years after petitioner filed the charges), the EEOC’s District Director found that there was reasonable cause to believe that petitioner’s charges were true and invited the parties to attempt a resolution of petitioner’s grievance through conciliation proceedings. The EEOC’s efforts proved unsuccessful, and in due course, petitioner received a right-to-sue letter. Petitioner then filed this Title VII action in the United States District Court for the Western District of North Carolina. After a 2-day trial during which the court heard testimony from petitioner, Mr. Kincaid, and the five members of the selection committee, the court issued a brief memorandum of decision setting forth its finding that petitioner was entitled to judgment because she had been denied the position of Recreation Director on account of her sex. In addition to laying out the rationale for this finding, the memorandum requested that petitioner’s counsel submit proposed findings of fact and conclusions of law expanding upon those set forth in the memorandum. Petitioner’s counsel complied with this request by submitting a lengthy set of proposed findings (App. lla-34a); the court then requested and received a response setting forth in detail respondent’s objections to the proposed findings {id., at 36a-47a) — objections that were, in turn, answered by petitioner’s counsel in a somewhat less lengthy reply {id., at 48a-54a). After receiving these submissions, the court issued its own findings of fact and conclusions of law. 557 F. Supp. 412, 413-419 (1983). As set forth in the formal findings of fact and conclusions of law, the court’s finding that petitioner had been denied employment by respondent because of her sex rested on a number of subsidiary findings. First, the court found that at the time the selection committee made its choice, petitioner had been better qualified than Mr. Kincaid to perform the range of duties demanded by the position. The court based this finding on petitioner’s experience as a classroom teacher responsible for supervising schoolchildren in recreational and athletic activities, her employment as a hospital recreation director in the late 1950’s, her extensive involvement in a variety of civic organizations, her knowledge of sports acquired both as a high school athlete and as a mother of children involved in organized athletics, her skills as a public speaker, her experience in handling money (gained in the course of her community activities and in her work as a bookkeeper for a group of physicians), and her knowledge of music, dance, and crafts. The court found that Mr. Kincaid’s principal qualifications were his experience as a student teacher and as a coach in a local youth basketball league, his extensive knowledge of team and individual sports, acquired as a result of his lifelong involvement in athletics, and his formal training as a physical education major in college. Noting that the position of Recreation Director involved more than the management of athletic programs, the court concluded that petitioner’s greater breadth of experience made her better qualified for the position. Second, the court found that the male committee members had in fact been biased against petitioner because she was a woman. The court based this finding in part on the testimony of one of the committee members that he believed it would have been “real hard” for a woman to handle the job and that he would not want his wife to have to perform the duties of the Recreation Director. The finding of bias found additional support in evidence that another male committee member had told Mr. Kincaid, the successful applicant, of the vacancy and had also solicited applications from three other men, but had not attempted to recruit any women for the job. Also critical to the court’s inference of bias was its finding that petitioner, alone among the applicants for the job, had been asked whether she realized the job would involve night work and travel and whether her husband approved of her applying for the job. The court’s finding that the committee had pursued this line of inquiry only with petitioner was based on the testimony of petitioner that these questions had been asked of her and the testimony of Mrs. Boone that similar questions had not been asked of the other applicants. Although Mrs. Boone also testified that during Mr. Kincaid’s interview, she had made a “comment” to him regarding the reaction of his new bride to his taking the position of Recreation Director, the court concluded that this comment was not a serious inquiry, but merely a “facetious” remark prompted by Mrs. Boone’s annoyance that only petitioner had been questioned about her spouse’s reaction. The court also declined to credit the testimony of one of the male committee members that Mr. Kincaid had been asked about his wife’s feelings “in a way” and the testimony of another committeeman that all applicants had been questioned regarding their willingness to work at night and their families’ reaction to night work. The court concluded that the finding that only petitioner had been seriously questioned about her family’s reaction suggested that the male committee members believed women had special family responsibilities that made certain forms of employment inappropriate. Finally, the court found that the reasons offered by the male committee members for their choice of Mr. Kincaid were pretextual. The court rejected the proposition that Mr. Kincaid’s degree in physical education justified his choice, as the evidence suggested that where male candidates were concerned, the committee valued experience more highly than formal training in physical education. The court also rejected the claim of one of the committeemen that Mr. Kincaid had been hired because of the superiority of the .recreational programs he planned to implement if selected for the job. The court credited the testimony of one of the other committeemen who had voted for Mr. Kincaid that the programs outlined by petitioner and Mr. Kincaid were substantially identical. On the basis of its findings that petitioner was the most qualified candidate, that the committee had been biased against hiring a woman, and that the committee’s explanations for its choice of Mr. Kincaid were pretextual, the court concluded that petitioner had met her burden of establishing that she had been denied the position of Recreation Director because of her sex. Petitioner having conceded that ordering the city to hire her would be an inappropriate remedy under the circumstances, the court awarded petitioner backpay in the amount of $30,397 and attorney’s fees of $16,971.59. The Fourth Circuit reversed the District Court’s finding of discrimination. 717 F. 2d 149 (1983). In the view of the Court of Appeals, three of the District Court’s crucial findings were clearly erroneous: the finding that petitioner was the most qualified candidate, the finding that petitioner had been asked questions that other applicants were spared, and the finding that the male committee members were biased against hiring a woman. Having rejected these findings, the Court of Appeals concluded that the District Court had erred in finding that petitioner had been discriminated against on account of her sex. II We must deal at the outset with the Fourth Circuit’s suggestion that “close scrutiny of the record in this case [was] justified by the manner in which the opinion was prepared,” id., at 156 — that is, by the District Court’s adoption of petitioner’s proposed findings of fact and conclusions of law. The court recalled that the Fourth Circuit had on many occasions condemned the practice of announcing a decision and leaving it to the prevailing party to write the findings of fact and conclusions of law. See, e. g., Cuthbertson v. Biggers Bros., Inc., 702 F. 2d 454 (1983); EEOC v. Federal Reserve Bank of Richmond, 698 F. 2d 633 (1983); Chicopee Mfg. Carp. v. Kendall Co., 288 F. 2d 719 (1961). The court rejected petitioner’s contention that the procedure followed by the trial judge in this case was proper because the judge had given respondent an opportunity to object to the proposed findings and had not adopted petitioner’s findings verbatim. According to the court, the vice of the procedure lay in the trial court’s solicitation of findings after it had already announced its decision and in the court’s adoption of the “substance” of petitioner’s proposed findings. We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. See, e. g., United States v. El Paso Natural Gas Co., 376 U. S. 651, 656-657 (1964); United States v. Marine Bancorporation, 418 U. S. 602, 615, n. 13 (1974). We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. See J. Wright, The Nonjury Trial — Preparing Findings of Fact, Conclusions of Law, and Opinions, Seminars for Newly Appointed United States District Judges 159, 166 (1962). Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. United States v. Marine Bancorporation, supra, at 615, n. 13; United States v. El Paso Natural Gas Co., supra, at 656-657. In any event, the District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party. The court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner’s counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner’s proposed findings: the findings it ultimately issued — and particularly the crucial findings regarding petitioner’s qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen — vary considerably in organization and content from those submitted by petitioner’s counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge’s own considered conclusions. There is no reason to subject those findings to a more stringent appellate review than is called for by the applicable rules. HH HH I — I Because a finding of intentional discrimination is a finding of fact, the standard governing appellate review of a district court’s finding of discrimination is that set forth in Federal Rule of Civil Procedure 52(a): “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” The question before us, then, is whether the Court of Appeals erred in holding the District Court’s finding of discrimination to be clearly erroneous. Although the meaning of the phrase “clearly erroneous” is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles, as the Fourth Circuit itself recognized, is that “[a] finding is ^clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U. S. 338, 342 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 (1982). This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. To be sure, various Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. See, e. g., Orvis v. Higgins, 180 F. 2d 537 (CA2 1950); Lydle v. United States, 635 F. 2d 763, 765, n. 1 (CA6 1981); Swanson v. Baker Industries, Inc., 615 F. 2d 479, 483 (CA8 1980). This theory has an impressive genealogy, having first been articulated in an opinion written by Judge Frank and subscribed to by Judge Augustus Hand, see Orvis v. Higgins, supra, but it is impossible to trace the theory’s lineage back to the text of Rule 52(a), which states straightforwardly that “findings of fact shall not be set aside unless clearly erroneous.” That the Rule goes on to emphasize the special deference to be paid credibility determinations does not alter its clear command: Rule 52(a) “does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous.” Pullman-Standard v. Swint, 456 U. S., at 287. The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the Court has stated in a different context, the trial on the merits should be “the ‘main event’. . . rather than a ‘tryout on the road.’” Wainwright v. Sykes, 433 U. S. 72, 90 (1977). For these reasons, review of factual findings under the clearly-erroneous standard— with its deference to the trier of fact — is the rule, not the exception. When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. See Wainwright v. Witt, 469 U. S. 412 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable fact-finder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See, e. g., United States v. United States Gypsum Co., supra, at 396. But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Cf. United States v. Aluminum Co. of America, 148 F. 2d 416, 433 (CA2 1945); Orvis v. Higgins, supra, at 539-540. > I — I Application of the foregoing principles to the facts of the case lays bare the errors committed by the Fourth Circuit in its employment of the clearly-erroneous standard. In detecting clear error in the District Court’s finding that petitioner was better qualified than Mr. Kincaid, the Fourth Circuit improperly conducted what amounted to a de novo weighing of the evidence in the record. The District Court’s finding was based on essentially undisputed evidence regarding the respective backgrounds of petitioner and Mr. Kincaid and the duties that went with the position of Recreation Director. The District Court, after considering the evidence, concluded that the position of Recreation Director in Bessemer City carried with it broad responsibilities for creating and managing a recreation program involving not only athletics, but also other activities for citizens of all ages and interests. The court determined that petitioner’s more varied educational and employment background and her extensive involvement in a variety of civic activities left her better qualified to implement such a rounded program than Mr. Kincaid, whose background was more narrowly focused on athletics. The Fourth Circuit, reading the same record, concluded that the basic duty of the Recreation Director was to implement an athletic program, and that the essential qualification for a successful applicant would be either education or experience specifically related to athletics. Accordingly, it seemed evident to the Court of Appeals that Mr. Kincaid was in fact better qualified than petitioner. Based on our own reading of the record, we cannot say that either interpretation of the facts is illogical or implausible. Each has support in inferences that may be drawn from the facts in the record; and if either interpretation had been drawn by a district court on the record before us, we would not be inclined to find it clearly erroneous. The question we must answer, however, is not whether the Fourth Circuit’s interpretation of the facts was clearly erroneous, but whether the District Court’s finding was clearly erroneous. See McAllister v. United States, 348 U. S. 19, 20-21 (1954). The District Court determined that petitioner was better qualified, and, as we have stated above, such a finding is entitled to deference notwithstanding that it is not based on credibility determinations. When the record is examined in light of the appropriately deferential standard, it is apparent that it contains nothing that mandates a finding that the District Court’s conclusion was clearly erroneous. Somewhat different concerns are raised by the Fourth Circuit’s treatment of the District Court’s finding that petitioner, alone among the applicants for the position of Recreation Director, was asked questions regarding her spouse’s feelings about her application for the position. Here the error of the Court of Appeals was its failure to give due regard to the ability of the District Court to interpret and discern the credibility of oral testimony. The Court of Appeals rested its rejection of the District Court’s finding of differential treatment on its own interpretation of testimony by Mrs. Boone — the very witness whose testimony, in the view of the District Court, supported the finding. In the eyes of the Fourth Circuit, Mrs. Boone’s testimony that she had made a “comment” to Mr. Kincaid about the feelings of his wife (a comment judged “facetious” by the District Court) conclusively established that Mr. Kincaid, and perhaps other male applicants as well, had been questioned about the feelings of his spouse. Mrs. Boone’s testimony on this point, which is set forth in the margin, is certainly not free from ambiguity. But Mrs. Boone several times stated that other candidates had not been questioned about the reaction of their wives — at least, “not in the same context” as had petitioner. And even after recalling and calling to the attention of the court that she had made a comment on the subject to Mr. Kincaid, Mrs. Boone denied that she had “asked” Mr. Kincaid about his wife’s reaction. Mrs. Boone’s testimony on these matters is not inconsistent with the theory that her remark was not a serious inquiry into whether Mr. Kincaid’s wife approved of his applying for the position. Whether the judge’s interpretation is actually correct is impossible to tell from the paper record, but it is easy to imagine that the tone of voice in which the witness related her comment, coupled with her immediate denial that she had questioned Mr. Kincaid on the subject, might have conclusively established that the remark was a facetious one. We therefore cannot agree that the judge’s conclusion that the remark was facetious was clearly erroneous. Once the trial court’s characterization of Mrs. Boone’s remark is accepted, it is apparent that the finding that the male candidates were not seriously questioned about the feelings of their wives cannot be deemed clearly erroneous. The trial judge was faced with the testimony of three witnesses, one of whom (Mrs. Boone) stated that none of the other candidates had been so questioned, one of whom (a male committee member) testified that Mr. Kincaid had been asked such a question “in a way,” and one of whom (another committeeman) testified that all the candidates had been subjected to similar questioning. None of these accounts is implausible on its face, and none is contradicted by any reliable extrinsic evidence. Under these circumstances, the trial court’s decision to credit Mrs. Boone was not clearly erroneous. The Fourth Circuit’s refusal to accept the District Court’s finding that the committee members were biased against hiring a woman was based to a large extent on its rejection of the finding that petitioner had been subjected to questioning that the other applicants were spared. Given that that finding was not clearly erroneous, the finding of bias cannot be termed erroneous: it finds support not only in the treatment of petitioner in her interview, but also in the testimony of one committee member that he believed it would have been difficult for a woman to perform the job and in the evidence that another member solicited applications for the position only from men. Our determination that the findings of the District Court regarding petitioner’s qualifications, the conduct of her interview, and the bias of the male committee members were not clearly erroneous leads us to conclude that the court’s finding that petitioner was discriminated against on account of her sex was also not clearly erroneous. The District Court’s findings regarding petitioner’s superior qualifications and the bias of the selection committee are sufficient to support the inference that petitioner was denied the position of Recreation Director on account of her sex. Accordingly, we hold that the Fourth Circuit erred in denying petitioner relief under Title VII. In so holding, we do not assert that our knowledge of what happened 10 years ago in Bessemer City is superior to that of the Court of Appeals; nor do we claim to have greater insight than the Court of Appeals into the state of mind of the men on the selection committee who rejected petitioner for the position of Recreation Director. Even the trial judge, who has heard the witnesses directly and who is more closely in touch than the appeals court with the milieu out of which the controversy before him arises, cannot always be confident that he “knows” what happened. Often, he can only determine whether the plaintiff has succeeded in presenting an account of the facts that is more likely to be true than not. Our task — and the task of appellate tribunals generally — is more limited still: we must determine whether the trial judge’s conclusions are clearly erroneous. On the record before us, we cannot say that they are. Accordingly, the judgment of the Court of Appeals is Reversed. The evidence established that the committee members had initially favored a third candidate, Bert Broadway, and had decided not to hire him only because he stated that he was unwilling to move to Bessemer City. Mr. Broadway had two years of experience as a community recreation director; but like petitioner, he lacked a college degree in physical education. The Fourth Circuit thus saw no inconsistency between the statement of the male committee members that they preferred Bert Broadway because of his experience and their claim that they had selected Mr. Kincaid over petitioner because of his formal training. See n. 1, supra. In the view of the Court of Appeals, this demonstrated only that Mr. Broadway had relevant experience and Mr. Kincaid had relevant education, while petitioner had neither. “Q: Did the committee members ask that same kind of question of the other applicants? “A: Not that I recall. “Q: Do you deny that the other applicants, aside from the plaintiff, were asked about the prospect of working at night in that position? “A: Not to my knowledge. “Q: Are you saying they were not asked that? “A: They were not asked, not in the context that they were asked of Phyllis. I don’t know whether they were worried because Jim wasn’t going to get his supper or what. You know, that goes both ways. “Q: Did you tell Phyllis Anderson that Donnie Kincaid was not asked about night work? “A: He wasn’t asked about night work. “Q: That answers one question. Now, let’s answer the other one. Did you tell Phyllis Anderson that, that Donnie Kincaid was not asked about night work? “A: Yes, after the interviews — I think the next day or sometime, and I know — may I answer something? “Q: If it’s a question that has been asked; otherwise, no. It’s up to the Judge to say. “A: You asked if there was any question asked about — I think Donnie was just married, and I think I made the comment to him personally — and your new bride won’t mind. “Q: So, you asked him yourself about his own wife’s reaction? “A: No, no. “Q: That is what you just said. “Mr. Gibson: Objection, Your Honor. “[The] Court: Sustained. You don’t have to rephrase the answer.” App. 108a, 120a-121a. The Fourth Circuit’s suggestion that any inference of bias was dispelled by the fact that each of the male committee members was married to a woman who had worked at some point in the marriage is insufficient to establish that the finding of bias was clearly erroneous. Although we decline to hold that a man’s attitude toward his wife’s employment is irrelevant to the question whether he may be found to have a bias against working women, any relevance the factor may have in a particular case is a matter for the district court to weigh in its consideration of bias, not the court of appeals.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
UNITED STATES v. FIOR D'ITALIA, INC. No. 01-463. Argued April 22, 2002 Decided June 17, 2002 Breyer, J., delivered the opinion of the Court, in which Rehnqxjist, C. J., and Stevens, O’Connor, Kennedy, and Ginsburg, JJ., joined. Souter, J., filed a dissenting opinion, in which Scalia. and Thomas, JJ., joined, post, p. 252. Assistant Attorney General O’Connor argued the cause for the United States. With her on the briefs were Solicitor General Olson, Deputy Solicitor General Wallace, Kent L. Jones, Bruce R. Ellisen, and Jeffrey R. Meyer. Tracy J. Power argued the cause for respondent. With her on the brief were Thomas W. Power, Donald B. Ayer, and Elizabeth Rees. Briefs of amici curiae urging affirmance were filed for the American Gaming Association by Robert H. Kapp, John G. Roberts, Jr., and Frank J. Fahrenkopf, Jr.; for the National Restaurant Association by Peter G. Kilgore; and for Patricia R. Guandal by Lawrence R. Jones, Jr. Justice Breyer delivered the opinion of the Court. Employers must pay Federal Insurance Contributions Act taxes (popularly known as Social Security taxes or FICA taxes), calculated as a percentage of the wages — including the tips — that their employees receive. 26 U. S. C. §§ 3101, 3111, 3121(q). This case focuses upon the Government’s efforts to assess a restaurant for FICA taxes based upon tips that its employees may have received but did not report. We must decide whether the law authorizes the Internal Revenue Service (IRS) to base that assessment upon its aggregate estimate of all the tips that the restaurant’s customers paid its employees, or whether the law requires the IRS instead to determine total tip income by estimating each individual employee’s tip income separately, then adding individual estimates together to create a total. In our view, the law authorizes the IRS to use the aggregate estimation method. I The tax law imposes, not only on employees, but also “on every employer,” an “excise tax,” i. e., a FICA tax, in an amount equal to a percentage “of the wages ... paid by him with respect to employment.” § 3111(a) (setting forth basic Social Security tax); § 3111(b) (using identical language to set forth additional hospital insurance tax). It specifies that “tips received by an employee in the course of his employment shall be considered remuneration” and “deemed to have been paid by the employer” for purposes of the FICA tax sections. §3121(q). It also requires an employee who receives wages in the form of tips to report the amount of those tips to the employer, who must send copies of those reports to the IRS. 26 CFR § 31.6011(a) — 1(a) (2001). In 1991 and 1992 the reports provided to San Francisco’s Fior D’ltalia restaurant (and ultimately to the IRS) by the restaurant’s employees showed that total tip income amounted to $247,181 and $220,845, in each year respectively. And Fior D’ltalia calculated and paid its FICA tax based on these amounts. The same reports, however, also showed that customers had listed tips on their credit card slips amounting to far more than the amount reported by the employees ($364,786 in 1991 and $338,161 in 1992). Not surprisingly, this discrepancy led the IRS to conduct a compliance check. And that check led the IRS to issue an assessment against Fior D’ltalia for additional FICA tax. To calculate the added tax it found owing, the IRS used what it calls an “aggregate estimation” method. That method was a very simple one. The IRS examined the restaurant’s credit card slips for the years in question, finding that customers had tipped, on average, 14.49% of their bills in 1991 and 14.29% in 1992. Assuming that cash-paying customers on average tipped at those rates also, the IRS calculated total tips by multiplying the tip rates by the restaurant’s total receipts. It then subtracted tips already reported and applied the FICA tax rate to the remainder. The results for 1991 showed total tips amounting to $403,726 and unreported tips amounting to $156,545. The same figures for 1992 showed $368,374 and $147,529. The IRS issued an assessment against Fior D’ltalia for additional FICA taxes owed, amounting to $11,976 for 1991 and $11,286 for 1992. After paying a portion of the taxes assessed, the restaurant brought this refund suit, while the IRS filed a counterclaim for the remainder. The restaurant argued that the tax statutes did not authorize the IRS to use its “aggregate estimation” method; rather, they required the IRS first to determine the tips that each individual employee received and then to use that information to calculate the employer’s total FICA tax liability. Simplifying the case, the restaurant agreed that “[f]or purposed] of this litigation,” it would “not dispute the facts, estimates and/or determinations” that the IRS had “used ... as a basis for its calculation” of the employees’ “aggregate unreported tip income.” App. 35. And the District Court decided the sole remaining legal question — the question of the statutory authority to estimate tip income in the aggregate — in Fior D’ltalia’s favor. The Court of Appeals affirmed the District Court by a vote of 2 to 1, the majority concluding that the IRS is not legally authorized to use its aggregate estimation method, at least not without first adopting its own authorizing regulation. In light of differences among the Circuits, compare 242 F. 3d 844 (CA9 2001) (case below) with 330 West Hubbard Restaurant Corp. v. United States, 203 F. 3d 990, 997 (CA7 2000), Bubble Room, Inc. v. United States, 159 F. 3d 553, 568 (CA Fed. 1998), and Morrison Restaurants, Inc. v. United States, 118 F. 3d 1526, 1530 (CA11 1997), we granted the Government’s petition for certiorari. We now reverse. II An “assessment” amounts to an IRS determination that a taxpayer owes the Federal Government a certain amount of unpaid taxes. It is well established in the tax law that an assessment is entitled to a legal presumption of correctness — a presumption that can help the Government prove its case against a taxpayer in court. See, e. g., United States v. Janis, 428 U. S. 433, 440 (1976); Palmer v. IRS, 116 F. 3d 1309, 1312 (CA9 1997); Psaty v. United States, 442 F. 2d 1154, 1160 (CA3 1971); United States v. Lease, 346 F. 2d 696, 700 (CA2 1965). We consider here the Government’s authority to make an assessment in a particular way, namely, by directly estimating the aggregate tips that a restaurant’s employees have received rather than estimating (and then summing) the tips received by each individual employee. The Internal Revenue Code says that the IRS, as delegate of the Secretary of Treasury, “is authorized and required to make the inquiries, determinations, and assessments of all taxes . . . which have not been duly paid . . . .” 26 U. S. C. § 6201(a) (emphasis added). This provision, by granting the IRS assessment authority, must simultaneously grant the IRS power to decide how to make that assessment — at least within certain limits. And the courts have consistently held that those limits are not exceeded when the IRS estimates an individual’s tax liability — as long as the method used to make the estimate is a “reasonable” one. See, e. g., Erickson v. Commissioner, 937 F. 2d 1548, 1551 (CA10 1991) (estimate made with reference to taxpayer’s purchasing record was “presumptively correct” when based on “reasonable foundation”). See also Janis, supra, at 437 (upholding estimate of tax liability over 77-day period made by extrapolating information based on gross proceeds from 5-day period); Dodge v. Commissioner, 981 F. 2d 350, 353-354 (CA8 1992) (upholding estimate using bank deposits by taxpayer); Pollard v. Commissioner, 786 F. 2d 1063, 1066 (CA11 1986) (upholding estimate using statistical tables reflecting cost of living where taxpayer lived); Gerardo v. Commissioner, 552 F. 2d 549, 551-552 (CA3 1977) (upholding estimate using extrapolation of income over 1-year period based on gross receipts from two days); Mendelson v. Commissioner, 305 F. 2d 519, 521-522 (CA7 1962) (upholding estimate of waitress’ tip income based on restaurant’s gross receipts and average tips earned by all waitresses employed by restaurant); McQuatters v. Commissioner, 32 TCM 1122 (1973), ¶ 73,240 P-H Memo TC (same). Fior D’ltalia does not challenge this basic principle of law. Rather, it seeks to explain why this principle should not apply here, or why it should not determine the outcome of this case in the Government’s favor. A Fior D’Italia’s primary argument rests upon the statute that imposes the FICA tax. It points out that the tax law says there is “imposed on every employer” an “excise tax” calculated on the basis of “wages . . . paid by him” as those “wages” are “defined in” §3121. §§3111(a), (b). It adds that the subsection of §3121 which specifies that “wages” includes tips (subsection q) refers to “tips” as those “received by an employee in the course of his employment,” i e., to tips received by each employee individually. (Emphasis added.) Fior D’ltalia emphasizes § 3121(q)’s reference to the employee in the singular to conclude that the “employer’s liability for FICA taxes therefore attaches to each of these individual payments, not when they are later summed and reported.” Brief for Respondent 28 (emphasis in original). In our view Fior D’ltalia’s linguistic argument makes too much out of too little. The language it finds key, the words “tips received by an employee,” is contained in a definitional section, §3121(q), not in the sections that impose the tax, §§ 3111(a), (b). The definitional section speaks in the singular. It says that an employee’s (singular) tips “shall be considered remuneration” for purposes of the latter, tax imposing sections. § 3121(q). But the latter operational sections speak in the plural. They impose on employers a FICA tax calculated as a percentage of the “wages” (plural) paid to “individuals” (plural) by the employer “with respect to employment.” §§ 3111(a), (b). The operational sections consequently impose liability for the totality of the “wages” that the employer pays, which totality of “wages,” says the definitional section, shall include the tips that each individual employee earns. It is as if a tax were imposed on “all of a restaurant’s dishes,” with a definitional section specifying that “dishes” shall “include each customer’s silverware.” We simply do not see how this kind of language, taken as a whole, argues against use of an aggregate estimation method that seeks to determine the restaurant’s total FICA tax liability. B The Ninth Circuit relied in part upon two other statutory provisions. The first, 26 U. S. C. § 446(b), has been interpreted to authorize the IRS to use methods of estimation for determining income tax liability. See, e. g., Mendelson, supra, at 521-522 (authorizing estimate of waitress’ gross receipts). The court felt this provision negatively implies a lack of IRS authority to use the aggregate estimation method in respect to other taxes, such as employer FICA taxes, where no such provision applies. 242 F. 3d, at 849. The second, 26 U. S. C. § 6205(a)(1), authorizes the Secretary to adopt regulations that prescribe mechanisms for employers to adjust FICA tax liability. The court felt this provision negatively implies a lack of IRS authority to use an aggregate estimation method in the absence of a regulation. 242 F. 3d, at 851. After examining the statutes, however, we cannot find any negative implication. The first says that, where a taxpayer has used “a method of accounting” that “does not clearly reflect income,” or has used “no method of accounting” at all, “the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income.” § 446(b). This provision applies to only one corner of income tax law, and even within that corner it says nothing about any particular method of calculation. To read it negatively would significantly limit IRS authority in that respect both within and outside the field of income tax law. And there is simply no reason to believe that Congress intended any such limitation. Section 6205(a)(1) refers to certain employment taxes, including FICA taxes, and says that when an employer initially pays “less than the correct amount of tax,” then “proper adjustments ... shall be made, without interest,” in accordance with “regulations.” The IRS has made clear that this provision refers to an employer’s “adjustments,” say, in an initially underreported tax liability, made before the IRS has assessed an underpayment. See generally 26 CFR § 31.6205-1 (2001). Again, there is simply no reason to believe that Congress, in writing this provision applicable to a small corner of tax law, intended, through negative implication, to limit the IRS’ general power to assess tax deficiencies. Indeed, Fior DTtalia has not advanced in this Court either “negative implication” argument relied on by the Ninth Circuit. C Fior D’ltalia next points to several features of an “aggregate” estimate that, in its view, make it “unreasonable” (and therefore contrary to law) for the IRS to use that method. First, it notes that an aggregate estimate will sometimes include tips that should not count in calculating the FICA tax the employer owes. The law excludes an employee’s tips from the FICA wages base insofar as those tips amount to less than $20 in a month. 26 U. S. C. §3121(a)(12)(B). It also excludes the portion of tips and other wages (including fixed salary) an employee receives that rises above a certain annual level — $53,400 in 1991 and $55,500 in 1992. § 3121(a)(1); 242 F. 3d, at 846, n. 4. These ceilings mean that if a waiter earns, say, $36,000 in fixed salary, reports $20,000 in tips, and fails to report $10,000 in tips, the restaurant would not owe additional taxes, because the waiter’s reported income ($56,000) already exceeds the FICA ceiling. But if that waiter earns $36,000 in fixed salary, reports $10,000 in tips, and fails to report another $10,000 in tips, the restaurant would owe additional taxes on the unreported amount, because the waiter’s reported income of $46,000 falls below the FICA ceiling. Second, Fior D’ltalia points out that an aggregate calculation based on credit card slips can overstate the aggregate amount of tips because it fails to account for the possibilities that: (1) customers who pay cash tend to leave a lower percentage of the bill as a tip; (2) some customers “stiff” the waiter, leaving no tip at all; (3) some customers write a high tip on the credit card slip, but ask for some cash back, leaving a net lower amount; and (4) some restaurants deduct the credit card company fee from the tip, leaving the employees with a lower net amount. Fior D’ltalia adds that these potential errors can make an enormous difference to a restaurant, for restaurant profits are often low, while the tax is high. Brief for Respondent 9-10, n. 6 (asserting that an assessment for unreported tips for all years since employer FICA tax provision was enacted would amount to two years’ total profits). Indeed, the restaurant must pay this tax on the basis of amounts that the restaurant itself cannot control, for the restaurant’s customers, not the restaurant itself, determine the level of tips. Fior D’ltalia concludes that the IRS should avoid these problems by resting its assessment upon individual calculations of employee tip earnings, and argues that the IRS’ failure to do so will always result in an overstatement of tax liability, rendering any assessment that results from aggregate estimates unreasonable and outside the limits of any delegated IRS authority. In our view, these considerations do not show that the IRS’ aggregate estimating method falls outside the bounds of what is reasonable. It bears repeating that in this litigation, Fior D’ltalia stipulated that it would not challenge the particular IRS calculation as inaccurate. Absent such a stipulation, a taxpayer would remain free to present evidence that an assessment is inaccurate in a particular case. And we do not accept Fior D’Italia’s claim that restaurants are unable to do so — that they “simply do not have the information to dispute” the IRS assessment. Tr. of Oral Arg. 36. Why does a restaurant owner not know, or why is that owner unable to find out: how many busboys or other personnel work for only a day or two — thereby likely earning less than $20 in tips; how many employees were likely to have earned more than $55,000 or so in 1992; how much less cash-paying customers tip; how often they “stiff” waiters or ask for a cash refund; and whether the restaurant owner deducts a credit card charge of, say 3%, from employee tips? After all, the restaurant need not prove these matters with precision. It need only demonstrate that use of the aggregate method in the particular case has likely produced an inaccurate result. And in doing so, it may well be able to convince a judge to insist upon a more accurate formula. See, e. g., Erickson, 937 F. 2d, at 1551 {“Some reasonable foundation for the assessment is necessary to preserve the presumption of correctness” (emphasis in original)). Nor has Fior D’ltalia convinced us that individualized employee assessments will inevitably lead to a more “reasonable” assessment of employer liability than an aggregate estimate. After all, individual audits will be plagued by some of the same inaccuracies Fior D’ltalia attributes to the aggregate estimation method, because they are, of course, based on estimates themselves. See, e. g., Mendelson, 305 F. 2d, at 521-522; McQuatters v. Commissioner, 32 TCM 1122 (1973), ¶ 73,240 P-H Memo TC. Consequently, we cannot find that the aggregate method is, as a general matter, so unreasonable as to violate the law. D Fior D’ltalia also mentions an IRS regulation that it believes creates a special problem of fairness when taken together with the “aggregate” assessment method. That regulation says that an employer, when calculating its FICA tax, must “include wages received by an employee in the form of tips only to the extent of the tips reported ... to the employer.” 26 CFR §31.601 l(a)-l(a) (2001) (emphasis added). How, then, asks Fior D’ltalia, could the employer have calculated tax on a different amount, namely: (1) the amount of tips “reported”; plus (2) the amount of tips received but not reported? Indeed, Fior D’ltalia itself did not do so initially, presumably because this regulation said it should not do so. See Brief for Respondent 16-17. And, if it should not do so, is it not seriously unfair for the IRS later to assess against it a tax deficiency based on this latter figure? “[T]here is no practical or legally authorized way,” Fior D’ltalia complains, for the restaurant to include the additional amount of tips for which the IRS might later seek tax payment. Id., at 16. The statute itself, however, responds to this concern. It says that, insofar as tips were received but not reported to the employer, that remuneration (i. e., the unreported tips) shall not be deemed to have been paid by the employer until “the date on which notice and demand for such taxes is made to the employer by the Secretary.” 26 U. S. C. § 3121(q). This provision makes clear that it is not unfair or illegal to assess a tax deficiency on the unreported tips, for penalties will not attach and interest will not accrue unless-the IRS actually demands the money and the restaurant refuses subsequently to pay the amount demanded in a timely fashion. See generally Rev. Rul. 95-7, 1995-4 I. R. B. 44. Indeed, the statute (and its accompanying Revenue Ruling) contemplates both a restaurant that does not police employee tip reporting and a later assessment based on unreported tips. It makes clear that, at most, such a restaurant would have to create a reserve for potential later tax liability. Although the reporting scheme may, place restaurants in an awkward position, the Tax Code seems to contemplate that position; and its bookkeeping awkwardness consequently fails to support the argument that aggregate estimation is unlawful. E Finally, Fior D’ltalia suggests that the IRS is putting its “aggregate estimate” method to improper use. It traces a lengthy history of disagreement among restaurant workers, restaurant owners, and the IRS as to how best to enforce the restaurants’ legal obligation to pay FICA taxes on unreported tip income. It notes that the IRS has agreed to create a special program, called the “Tip Reporting Alternative Commitment,” whereby a restaurant promises to establish accurate tip reporting procedures in return for an IRS promise to base FICA tax liability on reported tips alone. It adds that any coercion used to force a restaurant to enter such a program (often unpopular with employees) would conflict with the views of Members of Congress and IRS officials, who have said that a restaurant should not be held responsible for its employees’ failure to report all their tips as income. See, e. g., Letter of Members of Congress to Secretary of Treasury Lloyd Bentsen, 32 Tax Analysts’ Daily Tax Highlights & Documents 3913 (Mar. 4, 1994); App. 106, 107. It adds that Congress has enacted this view into two special laws: the first of which gives restaurants a nonrefundable tax credit on FICA taxes paid, i. e., permits restaurants to offset any FICA it pays on employee tips on a dollar for dollar basis against its own income tax liability, 26 U. S. C. §45B; and the second of which prohibits the IRS from “ threatening] to audit” a restaurant in order to “coerce” it into entering the special tip-reporting program. Internal Revenue Service Restructuring and Reform Act of 1998, 112 Stat. 755. Fior D’ltalia says that the IRS’ recent use of an “aggregate estimate” approach runs contrary to the understanding that underlies this second statute, for it “effectively forces the employer into . . . verifying, investigating, monitoring, and policing compliance by its employees — responsibilities which Congress and the Courts have considered, evaluated, and steadfastly refused to transfer from IRS to the employer.” Brief for Respondent 9. And it suggests that the IRS intends to use a legal victory here as a “threat,” say, to reopen back tax years, in order to require restaurant owners “to force” their “employees to report” all tips. Id., at 14. Why else, asks Fior D’ltalia, would the IRS bring this case? After all, given the dollar for dollar FICA/income tax setoff, this case may not even produce revenue for the Government. Fior D’Italia’s “abuse of power” argument, however, does not constitute a ground for holding unlawful the IRS’ use of aggregate estimates. Even if we assume, for argument’s sake, that an improper motive could render unlawful the use of a statutorily permissible enforcement method in certain circumstances, cf United States v. Powell, 379 U. S. 48, 58 (1964), we note that Fior D’ltalia has not demonstrated that the IRS has acted illegally in this case. Instead it has presented a general claim to the effect that the aggregate estimation method lends itself to abusive agency action. But we cannot find agency action unreasonable in all cases simply because of a general possibility of abuse — a possibility that exists in respect to many discretionary enforcement powers. Cf. Heckler v. Chaney, 470 U. S. 821, 831 (1985). The statutes and congressional documents that protect restaurants from onerous monitoring requirements consequently do not support Fior D’ltalia’s argument that aggregate estimates are statutorily prohibited. For example, the Internal Revenue Service Restructuring and Reform Act prohibits the IRS from “ threatening] to audit” restaurants as a means to “coerce” them into policing employee tip reporting, supra, at 250, but Fior D’ltalia does not claim that the IRS has violated this statute. Nor, for that matter, has Fior D’ltalia presented evidence that this particular litigation would fail to yield revenue to the Government (due to the availability of the FICA tax credit), or convincingly explained, even if so, why that fact, while making the case un-remunerative, would automatically make it improper. And while other documents show that Congress has expressed concern regarding a restaurant’s difficulty in trying to supervise its employees’ reporting of their tips, they do not suggest that the aggregate estimate method is an unreasonable way of ascertaining unpaid FICA taxes for which the employer is indisputably liable (particularly when one recalls that the taxpayer generally remains free to challenge the accuracy of the calculation at issue, even though this taxpayer has waived its right to do so). Rather, as we have shown, the relevant Code provisions and case law support the use of aggregate estimates. See supra, at 242-244, 248-249. We conclude that Fior D’ltalia’s discussion of IRS “abuse” is insufficient to show that the agency’s use of aggregate estimates is prohibited by law. In saying this, we recognize that Fior D’ltalia remains free to make its policy-related arguments to Congress. Ill For these reasons, and because Fior D’ltalia has stipulated that it does not challenge the accuracy of the IRS assessment in this case, the judgment of the Court of Appeals is Reversed.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA et al. No. 80-1832. Argued February 22, 1982 Reargued December 7, 1982 Decided June 23, 1983 Burger, C. J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 959. White, J., filed a dissenting opinion, post, p. 967. Rehnquist, J., filed a dissenting opinion, in which White, J., joined, post, p. 1013. Eugene Gressman reargued the cause for petitioner in No. 80-2170. With him on the briefs was Stanley M. Brand. Michael Davidson reargued the cause for petitioner in No. 80-2171. With him on the briefs were M. Elizabeth Culbreth and Charles Tiefer. Solicitor General Lee reargued the cause for the Immigration and Naturalization Service in all cases. With him on the briefs were Assistant Attorney General Olson, Deputy Solicitor General Geller, Deputy Assistant Attorney General Simms, Edwin S. Kneedler, David A. Strauss, and Thomas O. Sargentich. Alan B. Morrison reargued the cause for Jagdish Rai Chadha in all cases. With him on the brief was John Cary Sims. Together with No. 80-2170, United States House of Representatives v. Immigration and Naturalization Service et al., and No. 80-2171, United States Senate v. Immigration and Naturalization Service et al., on certiorari.to the same court. Antonin Scalia, Richard B. Smith, and David Ryrie Brink filed a brief for the American Bar Association as amicus curiae urging affirmance. Briefs of amici curiae were filed by Robert C. Eckhardt for Certain Members of the United States House of Representatives; and by Paul C. Rosenthal for the Counsel on Administrative Law of the Federal Bar Association. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of the question of jurisdiction in No. 80-1882. Each presents a challenge to the constitutionality of the provision in § 244(e)(2) of the Immigration and Nationality Act, 66 Stat. 216, as amended, 8 U. S. C. § 1254(c)(2), authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States. I Chadha is an East Indian who was bom in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service ordered Chadha to show cause why he should not be deported for having “remained in the United States for a longer time than permitted.” App. 6. Pursuant to § 242(b) of the Immigration and Nationality Act (Act), 8 U. S. C. § 1252(b), a deportation hearing was held before an Immigration Judge on January 11, 1974. Chadha conceded that he was deport-able for overstaying his visa and the hearing was adjourned to enable him to file an application for suspension of deportation under § 244(a)(1) of the Act, 8 U. S. C. § 1254(a)(1)-Section 244(a)(1), at the time in question, provided: “As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and— “(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” After Chadha submitted his application for suspension of deportation, the deportation hearing was resumed on February 7, 1974. On the basis of evidence adduced at the hearing, affidavits submitted with the application, and the results of a character investigation conducted by the INS, the Immigration Judge, on June 25, 1974, ordered that Chadha’s deportation be suspended. The Immigration Judge found that Chadha met the requirements of § 244(a)(1): he had resided continuously in the United States for over seven years, was of good moral character, and would suffer “extreme hardship” if deported. Pursuant to § 244(c)(1) of the Act, 8 U. S. C. § 1254(c)(1), the Immigration Judge suspended Chadha’s deportation and a report of the suspension was transmitted to Congress. Section 244(c)(1) provides: “Upon application by any alien who is found by the Attorney General to meet the requirements of subsection (a) of this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session.” Once the Attorney General’s recommendation for suspension of Chadha’s deportation was conveyed to Congress, Congress had the power under § 244(c)(2) of the Act, 8 U. S. C. § 1254(c)(2), to veto the Attorney General’s determination that Chadha should not be deported. Section 244(c)(2) provides: “(2) In the case of an alien specified in paragraph (1) of subsection (a) of this subsection— “if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien’s voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings.” The June 25, 1974, order of the Immigration Judge suspending Chadha’s deportation remained outstanding as a valid order for a year and a half. For reasons not disclosed by the record, Congress did not exercise the veto authority reserved to it under § 244(c)(2) until the first session of the 94th Congress. This was the final session in which Congress, pursuant to § 244(c)(2), could act to veto the Attorney General’s determination that Chadha should not be deported. The session ended on December 19, 1975. 121 Cong. Rec. 42014, 42277 (1975). Absent congressional action, Chadha’s deportation proceedings would have been canceled after this date and his status adjusted to that of a permanent resident alien. See 8 U. S. C. § 1254(d). On December 12, 1975, Representative Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing “the granting of permanent residence in the United States to [six] aliens,” including Chadha. H. Res. 926, 94th Cong., 1st Sess.; 121 Cong Rec. 40247 (1975). The resolution was referred to the House Committee on the Judiciary. On December 16, 1975, the resolution was discharged from further consideration by the House Committee on the Judiciary and submitted to the House of Representatives for a vote. 121 Cong. Rec. 40800. The resolution had not been printed and was not made available to other Members of the House prior to or at the time it was voted on. Ibid. So far as the record before us shows, the House consideration of the resolution was based on Representative Eilberg’s statement from the floor that “[i]t was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution [Chadha and five others] did not meet these statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended.” Ibid. The resolution was passed without debate or recorded vote. Since the House action was pursuant to § 244(c)(2), the resolution was not treated as an Art. I legislative act; it was not submitted to the Senate or presented to the President for his action. After the House veto of the Attorney General’s decision to allow Chadha to remain in the United States, the Immigration Judge reopened the deportation proceedings to implement the House order deporting Chadha. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional. The Immigration Judge held that he had no authority to rule on the constitutional validity of § 244(c)(2). On November 8, 1976, Chadha was ordered deported pursuant to the House action. Chadha appealed the deportation order to the Board of Immigration Appeals, again contending that § 244(c)(2) is unconstitutional. The Board held that it had “no power to declare unconstitutional an act of Congress” and Chadha’s appeal was dismissed. App. 55-56. Pursuant to § 106(a) of the Act, 8 U. S. C. §1105a(a), Chadha filed a petition for review of the deportation order in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service agreed with Chadha’s position before the Court of Appeals and joined him in arguing that § 244(c)(2) is unconstitutional. In light of the importance of the question, the Court of Appeals invited both the Senate and the House of Representatives to file briefs amici curiae. After full briefing and oral argument, the Court of Appeals held that the House was without constitutional authority to order Chadha’s deportation; accordingly it directed the Attorney General “to cease and desist from taking any steps to deport this alien based upon the resolution enacted by the House of Representatives.” 634 F. 2d 408, 436 (1980). The essence of its holding was that § 244(c)(2) violates the constitutional doctrine of separation of powers. We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of our jurisdiction over the appeal in No. 80-1832, 454 U. S. 812 (1981), and we now affirm. I — i HH Before we address the important question of the constitutionality of the one-House veto provision of § 244(c)(2), we first consider several challenges to the authority of this Court to resolve the issue raised. A Appellate Jurisdiction Both Houses of Congress contend that we are without jurisdiction under 28 U. S. C. § 1252 to entertain the INS appeal in No. 80-1832. Section 1252 provides: “Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.” Parker v. Levy, 417 U. S. 733, 742, n. 10 (1974), makes clear that a court of appeals is a “court of the United States” for purposes of § 1252. It is likewise clear that the proceeding below was a “civil action, suit, or proceeding,” that the INS is an agency of the United States and was a party to the proceeding below, and that that proceeding held an Act of Congress — namely, the one-House veto provision in § 244(c)(2) — unconstitutional. The express requisites for an appeal under § 1252, therefore, have been met. In motions to dismiss the INS appeal, the congressional parties direct attention, however, to our statement that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it. ” Deposit Guaranty National Bank v. Roper, 445 U. S. 326, 333 (1980). Here, the INS sought the invalidation of § 244(c)(2), and the Court of Appeals granted that relief. Both Houses contend that the INS has already received what it sought from the Court of Appeals, is not an aggrieved party, and therefore cannot appeal from the decision of the Court of Appeals. We cannot agree. The INS was ordered by one House of Congress to deport Chadha. As we have set out more fully, supra, at 928, the INS concluded that it had no power to rule on the constitutionality of that order and accordingly proceeded to implement it. Chadha’s appeal challenged that decision and the INS presented the Executive’s views on the constitutionality of the House action to the Court of Appeals. But the INS brief to the Court of Appeals did not alter the agency’s decision to comply with the House action ordering deportation of Chadha. The Court of Appeals set aside the deportation proceedings and ordered the Attorney General to cease and desist from taking any steps to deport Chadha; steps that the Attorney General would have taken were it not for that decision. At least for purposes of deciding whether the INS is “any party” within the grant of appellate jurisdiction in § 1252, we hold that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take. It is apparent that Congress intended that this Court take notice of cases that meet the technical prerequisites of § 1252; in other cases where an Act of Congress is held unconstitutional by a federal court, review in this Court is available Only by writ of certiorari. When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal under § 1252. The agency’s status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. The appeal in No. 80-1832 is therefore properly before us. B Severability Congress also contends that the provision for the one-House veto in § 244(c)(2) cannot be severed from § 244. Congress argues that if the provision for the one-House veto is held unconstitutional, all of §244 must fall. If §244 in its entirety is violative of the Constitution, it follows that the Attorney General has no authority to suspend Chadha’s deportation under § 244(a)(1) and Chadha would be deported. From this, Congress argues that Chadha lacks standing to challenge the constitutionality of the one-House veto provision because he could receive no relief even if his constitutional challenge proves successful. Only recently this Court reaffirmed that the invalid portions of a statute are to be severed “ ‘[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.”’ Buckley v. Valeo, 424 U. S. 1, 108 (1976), quoting Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210, 284 (1982). Here, however, we need not embark on that elusive inquiry since Congress itself has provided the answer to the question of severability in § 406 of the Immigration and Nationality Act, note following 8 U. S. C. § 1101, which provides: “If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.” (Emphasis added.) This language is unambiguous and gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or of any part of the Act, to depend upon whether the veto clause of § 244(c)(2) was invalid. The one-House veto provision in § 244(c)(2) is clearly a “particular provision” of the Act as that language is used in the severability clause. Congress clearly intended “the remainder of the Act” to stand if “any particular provision” were held invalid. Congress could not have more plainly authorized the presumption that the provision for a one-House veto in § 244(c)(2) is sever-able from the remainder of § 244 and the Act of which it is a part. See Electric Bond & Share Co. v. SEC, 303 U. S. 419, 434 (1938). The presumption as to the severability of the one-House veto provision in § 244(c)(2) is supported by the legislative history of § 244. That section and its precursors supplanted the long-established pattern of dealing with deportations like Chadha’s on a case-by-case basis through private bills. Although it may be that Congress was reluctant to delegate final authority over cancellation of deportations, such reluctance is not sufficient to overcome the presumption of sever-ability raised by § 406. The Immigration Act of 1924, ch. 190, § 14, 43 Stat. 162, required the Secretary of Labor to deport any alien who entered or remained in the United States unlawfully. The only means by which a deportable alien could lawfully remain in the United States was to have his status altered by a private bill enacted by both Houses and presented to the President pursuant to the procedures set out in Art. I, § 7, of the Constitution. These private bills were found intolerable by Congress. In the debate on a 1937 bill introduced by Representative Dies to authorize the Secretary to grant permanent residence in “meritorious” cases, Dies stated: “It was my original thought that the way to handle all these meritorious cases was through special bills. I am absolutely convinced as a result of what has occurred in this House that it is impossible to deal with this situation through special bills. We had a demonstration of that fact not long ago when 15 special bills were before this House. The House consumed 514 hours considering four bills and made no disposition of any of the bills.” 81 Cong. Rec. 5542 (1937). Representative Dies’ bill passed the House, id., at 5574, but did not come to a vote in the Senate. 83 Cong. Rec. 8992-8996 (1938). Congress first authorized the Attorney General to suspend the deportation of certain aliens in the Alien Registration Act of 1940, ch. 439, § 20, 54 Stat. 671. That Act provided that an alien was to be deported, despite the Attorney General’s decision to the contrary, if both Houses, by concurrent resolution, disapproved the suspension. In 1948, Congress amended the Act to broaden the category of aliens eligible for suspension of deportation. In addition, however, Congress limited the authority of the Attorney General to suspend deportations by providing that the Attorney General could not cancel a deportation unless both Houses affirmatively voted by concurrent resolution to approve the Attorney General’s action. Act of July 1, 1948, ch. 78B, 62 Stat. 1206. The provision for approval by concurrent resolution in the 1948 Act proved almost as burdensome as private bills. Just one year later, the House Judiciary Committee, in support of the predecessor to § 244(c)(2), stated in a Report: “In the light of experience of the last several months, the committee came to the conclusion that the requirement of affirmative action by both Houses of the Congress in many thousands of individual cases which are submitted by the Attorney General every year, is not workable and places upon the Congress and particularly on the Committee on the Judiciary responsibilities which it cannot assume. The new responsibilities placed upon the Committee on the Judiciary [by the concurrent resolution mechanism] are of purely administrative nature and they seriously interfere with the legislative work of the Committee on the Judiciary and would, in time, interfere with the legislative work of the House.” H. R. Rep. No. 362, 81st Cong., 1st Sess., 2 (1949). The proposal to permit one House of Congress to veto the Attorney General’s suspension of an alien’s deportation was incorporated in the Immigration and Nationality Act of 1952, Pub. L. 414, § 244(a), 66 Stat. 214. Plainly, Congress’ desire to retain a veto in this area cannot be considered in isolation but must be viewed in the context of Congress’ irritation with the burden of private immigration bills. This legislative history is not sufficient to rebut the presumption of severability raised by §406 because there is insufficient evidence that Congress would have continued to subject itself to the onerous burdens of private bills had it known that § 244(c)(2) would be held unconstitutional. A provision is further presumed severable if what remains after severance “is fully operative as a law.” Champlin Refining Co. v. Corporation Comm’n, supra, at 234. There can be no doubt that § 244 is “fully operative” and workable administrative machinery without the veto provision in § 244(c)(2). Entirely independent of the one-House veto, the administrative process enacted by Congress authorizes the Attorney General to suspend an alien’s deportation under § 244(a). Congress’ oversight of the exercise of this delegated authority is preserved since all such suspensions will continue to be reported to it under § 244(c)(1). Absent the passage of a bill to the contrary, deportation proceedings will be canceled when the period specified in § 244(c)(2) has expired. Clearly, §244 survives as a workable administrative mechanism without the one-House veto. C Standing We must also reject the contention that Chadha lacks standing because a consequence of his prevailing will advance the interests of the Executive Branch in a separation-of-powers dispute with Congress, rather than simply Chadha’s private interests. Chadha has demonstrated “injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury... Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79 (1978). If the veto provision violates the Constitution, and is severable, the deportation order against Chadha will be canceled. Chadha therefore has standing to challenge the order of the Executive mandated by the House veto. D Alternative Relief It is contended that the Court should decline to decide the constitutional question presented by these cases because Chadha may have other statutory relief available to him. It is argued that since Chadha married a United States citizen on August 10, 1980, it is possible that other avenues of relief may be open under §§ 201(b), 204, and 245 of the Act, 8 U. S. C. §§ 1151(b), 1154, and 1255. It is true that Chadha may be eligible for classification as an “immediate relative” and, as such, could lawfully be accorded permanent residence. Moreover, in March 1980, just prior to the decision of the Court of Appeals in these cases, Congress enacted the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, under which the Attorney General is authorized to grant asylum, and then permanent residence, to any alien who is unable to return to his country of nationality because of “a well-founded fear of persecution on account of race.” It is urged that these two intervening factors constitute a prudential bar to our consideration of the constitutional question presented in these cases. See Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring). If we could perceive merit in this contention we might well seek to avoid deciding the constitutional claim advanced. But at most these other avenues of relief are speculative. It is by no means certain, for example, that Chadha’s classification as an immediate relative would result in the adjustment of Chadha’s status from nonimmigrant to permanent resident. See Menezes v. INS, 601 F. 2d 1028 (CA9 1979). If Chadha is successful in his present challenge he will not be deported and will automatically become eligible to apply for citizenship. A person threatened with deportation cannot be denied the right to challenge the constitutional validity of the process which led to his status merely on the basis of speculation over the availability of other forms of relief. E Jurisdiction It is contended that the Court of Appeals lacked jurisdiction under § 106(a) of the Act, 8 U. S. C. § 1105a(a). That section provides that a petition for review in the Court of Appeals “shall be the sole and exclusive procedure for the judicial review of all final orders of deportation... made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act.” Congress argues that the one-House veto authorized by § 244(c)(2) takes place outside the administrative proceedings conducted under § 242(b), and that the jurisdictional grant contained in § 106(a) does not encompass Chadha’s constitutional challenge. In Cheng Fan Kwok v. INS, 392 U. S. 206, 216 (1968), this Court held that “§ 106(a) embrace[s] only those determinations made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings.” It is true that one court has read Cheng Fan Kwok to preclude appeals similar to Chadha’s. See Dastmalchi v. INS, 660 F. 2d 880 (CA3 1981). However, we agree with the Court of Appeals in these cases that the term “final orders” in § 106(a) “includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing. ” 634 F. 2d, at 412. Here, Chadha’s deportation stands or falls on the validity of the challenged veto; the final order of deportation was entered against Chadha only to implement the action of the House of Representatives. Although the Attorney General was satisfied that the House action was invalid and that it should not have any effect on his decision to suspend deportation, he appropriately let the controversy take its course through the courts. This Court’s decision in Cheng Fan Kwok, supra, does not bar Chadha’s appeal. There, after an order of deportation had been entered, the affected alien requested the INS to stay the execution of that order. When that request was denied, the alien sought review in the Court of Appeals under § 106(a). This Court’s holding that the Court of Appeals lacked jurisdiction was based on the fact that the alien “did not ‘attack the deportation order itself but instead [sought] relief not inconsistent with it.’” 392 U. S., at 213, quoting Mui v. Esperdy, 371 F. 2d 772, 777 (CA2 1966). Here, in contrast, Chadha directly attacks the deportation order itself, and the relief he seeks — cancellation of deportation — is plainly inconsistent with the deportation order. Accordingly, the Court of Appeals had jurisdiction under § 106(a) to decide these cases. F Case or Controversy It is also contended that this is not a genuine controversy but “a friendly, non-adversary, proceeding,” Ashwander v. TVA, 297 U. S., at 346 (Brandeis, J., concurring), upon which the Court should not pass. This argument rests on the fact that Chadha and the INS take the same position on the constitutionality of the one-House veto. But it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual. A case or controversy is presented by these cases. First, from the time of Congress’ formal intervention, see n. 5, supra, the concrete adverseness is beyond doubt. Congress is both a proper party to defend the constitutionality of § 244(c)(2) and a proper petitioner under 28 U. S. C. §1254(1). Second, prior to Congress’ intervention, there was adequate Art. Ill adverseness even though the only parties were the INS and Chadha. We have already held that the INS’s agreement with the Court of Appeals’ decision that § 244(c)(2) is unconstitutional does not affect that agency’s “aggrieved” status for purposes of appealing that decision under 28 U. S. C. § 1252, see supra, at 929-931. For similar reasons, the INS’s agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment. We agree with the Court of Appeals that “Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold 1244(c)(2), the INS will execute its order and deport him.” 634 F. 2d, at 419. Of course, there may be prudential, as opposed to Art. Ill, concerns about sanctioning the adjudication of these cases in the absence of any participant supporting the validity of § 244(c)(2). The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress. We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 6 ]	sc_adminaction
RESERVE LIFE INSURANCE CO. v. BOWERS, TAX COMMISSIONER OF OHIO. No. 96. Argued March 4, 1965. Decided March 15, 1965. Harris K. Weston argued the cause for appellant. With him on the briefs was William E. Miller. Edgar L. Lindley, Assistant Attorney General of Ohio, argued the cause for appellee. With him on the brief was William B. Saxbe, Attorney General of Ohio. Per Curiam. The judgment is reversed and the case is remanded to the Court of Appeals, First Appellate District, Ohio. Wheeling Steel Corp. v. Glander, 337 U. S. 562. Mr. Justice Black dissents. Mr. Justice Stewart took no part in the decision of this case.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF ILLINOIS No. 88-1775. Argued January 17, 1990 Decided June 4, 1990 Stevens, J., announced the judgment of the Court and delivered an opinion, in which Brennan, Blackmun, and Kennedy, JJ., joined. Marshall, J., filed an opinion concurring in the judgment, in which Brennan, J., joined, post, p. 111. White, J., filed a dissenting opinion, post, p. 118. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 119. Bruce J. Ennis, Jr., argued the cause and filed briefs for petitioner. Stephen J. Marzen argued the cause for the Federal Trade Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Rill, Deputy Solicitor General Merrill, Kevin J. Arquit, Jay C. Shaffer, and Ernest J. Isenstadt. William F. Moran III argued the cause for respondent. With him on the brief was James J. Grogan. Briefs of amici curiae urging reversal were filed for the American Advertising Federation, Inc., by Philip B. Kurland and Alan S. Madans; for the Association of National Advertisers, Inc., by Burt Neuborne; for the Association of Trial Lawyers of America et al. by Jeffrey Robert White and Russ M. Herman; for Public Citizen by David C. Vladeck and Alan B. Morrison; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, Alan M. Slobodin, and Richard Samp. Briefs of amici curiae were filed for the Academy of Certified Trial Lawyers of Minnesota by Clarance E. Hagglund; and for the National Board of Trial Advocacy by Timothy Wilton and Jacob D. Fuchsberg. Justice Stevens announced the judgment of the Court and delivered an opinion, in which Justice Brennan, Justice Blackmun, and Justice Kennedy join. The Illinois Supreme Court publicly censured petitioner because his letterhead states that he is certified as a civil trial specialist by the National Board of Trial Advocacy. We granted certiorari to consider whether the statement on his letterhead is protected by the First Amendment. 492 U. S. 917 (1989). I This case comes to us against a background of growing interest in lawyer certification programs. In the 1973 Sonnett Memorial Lecture, then Chief Justice Warren E. Burger advanced the proposition that specialized training and certification of trial advocates is essential to the American system of justice. That proposition was endorsed by a number of groups of lawyers who were instrumental in establishing the National Board of Trial Advocacy (NBTA) in 1977. Since then, NBTA has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. Those standards, which have been approved by a board of judges, scholars, and practitioners, are objective and demanding. They require specified experience as lead counsel in both jury and nonjury trials, participation in approved programs of continuing legal education, a demonstration of writing skills, and the successful completion of a day-long examination. Certification expires in five years unless the lawyer again demonstrates his or her continuing qualification. NBTA certification has been described as a “highly-structured” and “arduous process that employs a wide range of assessment methods.” Task Force on Lawyer Competence, Report With Findings and Recommendations to the Conference of Chief Justices, Publication No. NCSC-021, pp. 33-34 (May 26, 1982). After reviewing NBTA’s procedures, the Supreme Court of Minnesota found that “NBTA applies a rigorous and exacting set of standards and examinations on a national scale before certifying a lawyer as a trial specialist.” In re Johnson, 341 N. W. 2d 282, 283 (1983). The Alabama Supreme Court similarly concluded that “a certification of specialty by NBTA would indicate a level of expertise with regard to trial advocacy in excess of the level of expertise required for admission to the bar generally.” Ex parte Howell, 487 So. 2d 848, 851 (1986). II Petitioner practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, and in Missouri in 1981. He has served as president of the Madison County Bar Association and has been active in both national and state bar association work. He has tried to verdict over 100 jury trials and over 300 nonjury trials, and has participated in hundreds of other litigated matters that were settled. NBTA issued petitioner a “Certificate in Civil Trial Advocacy” in 1981, renewed it in 1986, and listed him in its 1985 Directory of “Certified Specialists and Board Members.” Since 1983 petitioner’s professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed. It appears as follows: “Gary E. Peel “Certified Civil Trial Specialist “By the National Board of Trial Advocacy “Licensed: Illinois, Missouri, Arizona.” In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois (Commission) filed a complaint alleging that petitioner, by use of this letterhead, was publicly holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. That Rule provides: “A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as ‘certified’ or a ‘specialist.’” The complaint also alleged violations of Rule 2-101(b), which requires that a lawyer’s public “communication shall contain all information necessary to make the communication not misleading and shall not contain any false or misleading statement or otherwise operate to deceive,” and of Rule 1-102 (a)(1), which generally subjects a lawyer to discipline for violation of any Rule of the Code of Professional Responsibility. Disciplinary Rules 2-101(b), 1-102(a)(1) (1988). After a hearing, the Commission recommended censure for a violation of Rule 2-105(a)(3). It rejected petitioner’s First Amendment claim that a reference to a lawyer’s certification as a specialist was a form of commercial speech that could not be “‘subjected to blanket suppression.’” Report of the Hearing Panel, App. C to Pet. for Cert. 19a. Although the Commission’s “Findings of Facts” did not contain any statement as to whether petitioner’s representation was deceptive, its “Conclusion of Law” ended with the brief statement that petitioner, “by holding himself out, on his letterhead as ‘Gary E. Peel, Certified Civil Trial Specialist—By the National Board of Trial Advocacy,’ is in direct violation of the above cited Rule [2-105(a)(3)]. “We hold it is ‘misleading’ as our Supreme Court has never recognized or approved any certification process.” Id., at 20a. The Illinois Supreme Court adopted the Commission’s recommendation for censure. It held that the First Amendment did not protect petitioner’s letterhead because the letterhead was misleading in three ways. First, the State Supreme Court concluded that the juxtaposition of the reference to petitioner as “certified” by NBTA and the reference to him as “licensed” by Illinois, Missouri, and Arizona “could” mislead the general public into a belief that petitioner’s authority to practice in the field of trial advocacy was derived solely from NBTA certification. It thus found that the statements on the letterhead impinged on the court’s exclusive authority to license its attorneys because they failed to distinguish voluntary certification by an unofficial group from licensure by an official organization. In re Peel, 126 Ill. 2d 397, 405-406, 534 N. E. 980, 983-984 (1989). Second, the court characterized the claim of NBTA certification as “misleading because it tacitly attests to the qualifications of [petitioner] as a civil trial advocate.” Id., at 406, 534 N. E. 2d, at 984. The court noted confusion in the parties’ descriptions of NBTA’s requirements, but did not consider whether NBTA certification constituted reliable, verifiable evidence of petitioner’s experience as a civil trial advocate. Rather, the court reasoned that the statement was tantamount to an implied claim of superiority of the quality of petitioner’s legal services and therefore warranted restriction under our decision in In re R. M. J., 455 U. S. 191 (1982). 126 Ill. 2d, at 406, 534 N. E. 2d, at 984. Finally, the court reasoned that use of the term “specialist” was misleading because it incorrectly implied that Illinois had formally authorized certification of specialists in trial advocacy. The court concluded that the conjunction of the reference to being a specialist with the reference to being licensed implied that the former was the product of the latter. Id., at 410, 534 N. E. 2d, at 986. Concluding that the letterhead was inherently misleading for these reasons, the court upheld the blanket prohibition of Rule 2-105(a) under the First Amendment. III The Illinois Supreme Court considered petitioner’s letterhead as a form of commercial speech governed by the “constitutional limitations on the regulation of lawyer advertising.” 126 Ill. 2d, at 402, 534 N. E. 2d, at 982. The only use of the letterhead in the record is in petitioner’s correspondence with the Commission itself. Petitioner contends that, absent evidence of any use of the letterhead to propose commercial transactions with potential clients, the statement should be accorded the full protections of noncommercial speech. However, he also acknowledges that “this case can and should be decided on the narrower ground that even if it is commercial speech it cannot be categorically prohibited.” Tr. of Oral Arg. 9. We agree that the question to be decided is whether a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA. In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), this Court decided that advertising by lawyers was a form of commercial speech entitled to protection by the First Amendment. Justice Powell summarized the standards applicable to such claims for the unanimous Court in In re R. M. J., 455 U. S., at 203: “Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e. g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.... “Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served.” (Emphasis added.) In this case we must consider whether petitioner’s statement was misleading and, even if it was not, whether the potentially misleading character of such statements creates a state interest sufficiently substantial to justify a categorical ban on their use. The facts stated on petitioner’s letterhead are true and verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and that three States have licensed him to practice law. There is no contention that any potential client or person was actually misled or deceived by petitioner’s stationery. Neither the Commission nor the State Supreme Court made any factual finding of actual deception or misunderstanding, but rather concluded, as a matter of law, that petitioner’s claims of being “certified” as a “specialist” were necessarily misleading absent an official state certification program. Notably, although petitioner was originally charged with a violation of Disciplinary Rule 2-101(b), which aims at misleading statements by an attorney, his letterhead was not found to violate this rule. In evaluating petitioner’s claim of certification, the Illinois Supreme Court focused not on its facial accuracy, but on its implied claim “as to the quality of [petitioner’s] legal services,” and concluded that such a qualitative claim “‘might be so likely to mislead as to warrant restriction.’” 126 Ill. 2d, at 406, 534 N. E. 2d, at 984 (quoting In re R. M. J., 455 U. S., at 201). This analysis confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. A lawyer’s certification by NBTA is a verifiable fact, as are the predicate requirements for that certification. Measures of trial experience and hours of continuing education, like information about what schools the lawyer attended or his or her bar activities, are facts about a lawyer’s training and practice. A claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer’s work or a promise of success, cf. In re R. M. J., 455 U. S., at 201, n. 14, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney’s work in a given area of practice. We must assume that some consumers will infer from petitioner’s statement that his qualifications in the area of civil trial advocacy exceed the general qualifications for admission to a state bar. Thus if the certification had been issued by an organization that had made no inquiry into petitioner’s fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading. In this case, there is no evidence that a claim of NBTA certification suggests any greater degree of professional qualification than reasonably may be inferred from an evaluation of its rigorous requirements. Much like a trademark, the strength of a certification is measured by the quality of the organization for which it stands. The Illinois Supreme Court merely notes some confusion in the parties’ explanation of one of those requirements. See n. 9, supra. We find NBTA standards objectively clear, and, in any event, do not see why the degree of uncertainty identified by the State Supreme Court would make the letterhead inherently misleading to a consumer. A number of other States have their own certification plans and expressly authorize references to specialists and certification, but there is no evidence that the consumers in any of these States are misled if they do not inform themselves of the precise standards under which claims of certification are allowed. Nor can we agree with the Illinois Supreme Court’s somewhat contradictory fears that juxtaposition of the references to being “certified” as a “specialist” with the identification of the three States in which petitioner is “licensed” conveys, on the one hand, the impression that NBTA had the authority to grant those licenses and, on the other, that the NBTA certification was the product of official state action. The separate character of the two references is plain from their texts: one statement begins with the verb “[c]ertified” and identifies the source as the “National Board of Trial Advocacy,” while the second statement begins with the verb “[licensed” and identifies States as the source of licensure. The references are further distinguished by the fact that one is indented below petitioner’s name while the other uses the same margin as his name. See supra, at 96. There has been no finding that any person has associated certification with governmental action—state or federal—and there is no basis for belief that petitioner’s representation generally would be so construed. We are satisfied that the consuming public understands that licenses—to drive cars, to operate radio stations, to sell liquor—are issued by governmental authorities and that a host of certificates—to commend job performance, to convey an educational degree, to commemorate a solo flight or a hole in one—are issued by private organizations. The dictionary definition of “certificate,” from which the Illinois Supreme Court quoted only excerpts, comports with this common understanding: “[A] document issued by a school, a state agency, or a professional organization certifying that one has satisfactorily completed a course of studies, has passed a qualifying examination, or has attained professional standing in a given field and may officially practice or hold a position in that field.” Webster’s Third New International Dictionary 367 (1986 ed.) (emphasis added to portions omitted from 126 Ill. 2d, at 405, 534 N. E. 2d, at 984). The court relied on a similarly cramped definition of “specialist,” turning from Webster’s—which contains no suggestion of state approval of “specialists”—to the American Bar Association’s Comment to Model Rule 7.4, which prohibits a lawyer from stating or implying that he is a “specialist” except for designations of patent, admiralty, or state-designated specialties. The Comment to the Rule concludes that the terms “specialist” and “specialty” “have acquired a secondary meaning implying formal recognition as a specialist and, therefore, use of these terms is misleading” in States that have no formal certification procedures. ABA Model Rule of Professional Conduct 7.4 and Comment (1989). We appreciate the difficulties that evolving standards for attorney certification present to national organizations like the ABA. However, it seems unlikely that petitioner’s statement about his certification as a “specialist” by an identified national organization necessarily would be confused with formal state recognition. The Federal Trade Commission, which has a long history of reviewing claims of deceptive advertising, fortifies this conclusion with its observation that “one can readily think of numerous other claims of specialty—from ‘air conditioning specialist’ in the realm of home repairs to ‘foreign car specialist’ in the realm of automotive repairs—that cast doubt on the notion that the public would automatically mistake a claim of specialization for a claim of formal recognition by the State.” Brief for Federal Trade Commission as Amicus Curiae 24. We reject the paternalistic assumption that the recipients of petitioner’s letterhead are no more discriminating than the audience- for children’s television. Cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983). The two state courts that have evaluated lawyers’ advertisements of their certifications as civil trial specialists by NBTA have concluded that the statements were not misleading or deceptive on their face, and that, under our recent decisions, they were protected by the First Amendment. Ex parte Howell, 487 So. 2d 848 (Ala. 1986); In re Johnson, 341 N. W. 2d 282 (Minn. 1983). Given the complete absence of any evidence of deception in the present case, we must reject the contention that petitioner’s letterhead is actually misleading. IV Even if petitioner’s letterhead is not actually misleading, the Commission defends Illinois’ categorical prohibition against lawyers’ claims of being “certified” or a “specialist” on the assertion that these statements are potentially misleading. In the Commission’s view, the State’s interest in avoiding any possibility of misleading some consumers with such communications is so substantial that it outweighs the cost of providing other consumers with relevant information about lawyers who are certified as specialists. See Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 566 (1980). We may assume that statements of “certification” as a “specialist,” even though truthful, may not be understood fully by some readers. However, such statements pose no greater potential of misleading consumers than advertising admission to “Practice before: The United States Supreme Court,” In re R. M. J., 455 U. S. 191 (1982), of exploiting the audience of a targeted letter, Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988), or of confusing a reader with an accurate illustration, Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985). In this case, as in those, we conclude that the particular state rule restricting lawyers’ advertising is “‘broader than reasonably necessary to prevent the’ perceived evil.” Shapero, 486 U. S., at 472, (quoting In re R. M. J., 455 U. S., at 203). Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (restricting in-person solicitation). The need for a complete prophylactic against any claim of specialty is undermined by the fact that use of titles such as “Registered Patent Attorney” and “Proctor in Admiralty,” which are permitted under Rule 2-105(a)’s exceptions, produces the same risk of deception. Lacking empirical evidence to support its claim of deception, the Commission relies heavily on the inherent authority of the Illinois Supreme Court to supervise its own bar. Justice O’Connor’s dissent urges that “we should be more deferential” to the State, asserting without explanation that “the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead.” Whether the inherent character of a statement places it beyond the protection of the First Amendment is a question of law over which Members of this Court should exercise de novo review. Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 498-511 (1984). That the judgment below is by a State Supreme Court exercising review over the actions of its State Bar Commission does not insulate it from our review for constitutional infirmity. See, e. g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971). The Commission’s authority is necessarily constrained by the First Amendment to the Federal Constitution, and specifically by the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decisionmaking than is concealment of such information. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 770 (1976); Central Hudson Gas & Electric Corp., 447 U. S., at 562. Even if we assume that petitioner’s letterhead may be potentially misleading to some consumers, that potential does not satisfy the State’s heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public. In re R. M. J., 455 U. S., at 203. The presumption favoring disclosure over concealment is fortified in this case by the separate presumption that members of a respected profession are unlikely to engage in practices that deceive their clients and potential clients. As we noted in Bates v. State Bar of Arizona, 433 U. S., at 379: “It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort.” We do not ignore the possibility that some unscrupulous attorneys may hold themselves out as certified specialists when there is no qualified organization to stand behind that certification. A lawyer’s truthful statement that “XYZ Board” has “certified” him as a “specialist in admiralty law” would not necessarily be entitled to First Amendment protection if the certification were a sham. States can require an attorney who advertises “XYZ certification” to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law. There has been no showing—indeed no suggestion—that the burden of distinguishing between certifying boards that are bona fide and those that are bogus would be significant, or that bar associations and official disciplinary committees cannot police deceptive practices effectively. Cf. Shapero, 486 U. S., at 477 (“The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements”). “If the naiveté of the public will cause advertising by attorneys to be misleading, then it is the bar’s role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.” Bates, 433 U. S., at 375. To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty. In re R. M. J., 455 U. S., at 201-203. A State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA. Cf. In re Johnson, 341 N. W. 2d, at 283 (striking down the Disciplinary Rule that prevented statements of being “ ‘a specialist unless and until the Minnesota Supreme Court adopts or authorizes rules or regulations permitting him to do so’”). Information about certification and specialties facilitates the consumer’s access to legal services and thus better serves the administration of justice. Petitioner’s letterhead was neither actually nor inherently misleading. There is no dispute about the bona fides and the relevance of NBTA certification. The Commission’s concern about the possibility of deception in hypothetical cases is not sufficient to rebut the constitutional presumption favoring disclosure over concealment. Disclosure of information such as that on petitioner’s letterhead both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys. As the public censure of petitioner for violating Rule 2-105(a)(3) violates the First Amendment, the judgment of the Illinois Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. The First Amendment to the United States Constitution provides in part: “Congress shall make no law... abridging the freedom of speech, or of the press... If a statement may not be censored by the Federal Government, it is also protected from censorship by the State of Illinois. See Cantwell v. Connecticut, 310 U. S. 296 (1940); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Ford. L. Rev. 227 (1973) (recording the Fourth Annual John F. Sonnett Memorial Lecture delivered on November 26, 1973). The address warned that a lawyer is not qualified, “simply by virtue of admission to the bar, to be an advocate in trial courts in matters of serious consequence.” Id., at 240. Other proponents stress more positive reasons for certification such as the creation of “a powerful professional and economic incentive to increase [lawyers’] competence.” Brief for Academy of Certified Trial Lawyers of Minnesota as Amicus Curiae 15. See Trial Advocacy as a Specialty: Final Report of the Annual Chief Justice Earl Warren Conference on Advocacy in the United States (sponsored by the Roscoe Pound-American Trial Lawyers Foundation) (1976). The groups sponsoring NBTA include the National District Attorneys Association, the Association of Trial Lawyers of America, the International Academy of Trial Lawyers, the International Society of Barristers, the National Association of Criminal Defense Lawyers, the National Association of Women Lawyers, and the American Board of Professional Liability Attorneys. Brief for NBTA as Amicus Curiae 9-13. The current NBTA requirements are that an applicant: (1) be a bar member in good standing; (2) disclose any misconduct including criminal comrctions or professional discipline; (3) show at least five years of actual practice in civil trial law during the period immediately preceding application for certification; (4) show substantial involvement in trial practice, including 30% of professional time in civil trial litigation during each of the five years preceding application; (5) demonstrate experience by appearing as lead counsel in at least 15 complete trials of civil matters to verdict or judgment, including at least 45 days of trial and 5 jury trials, and by appearing as lead counsel in 40 additional contested matters involving the taking of testimony; (6) participate in 45 hours of continuing legal education in civil trial practice in the three years preceding application; 17) be confidentially reviewed by six attorneys, including two against or with whom the applicant has tried a civil matter, and a judge before whom the applicant has appeared within the preceding two years; (8) provide a substantial trial court memorandum or brief that was submitted to a court in the preceding three years; and (9) pass a day-long written examination testing both procedural and substantive law in various areas of civil trial practice. Petitioner has been vice chair of the Insurance and Tort Committee of the General Practice Session of the American Bar Association and an officer of the Tri-City Bar Association. He is a member of the Illinois State Bar Association, the Arizona State Bar Association, the Missouri State Bar Association, the Illinois Trial Lawyers Association, and the Association of Trial Lawyers of America. Hearing Tr., App. G to Pet. for Cert. 28a-29a. Report of the Hearing Panel, App. C to Pet. for Cert. 19a; App. 22-23. App. D to Pet. for Cert. 21a. Disciplinary Rule 2—105(a)(3) (1988). The exceptions are for patent, trademark, and admiralty lawyers. The remainder of Rule 2-105 provides: “Rule 2-105. Limitation of Practice. “(a) A lawyer shall not hold himself out publicly as a specialist, except as follows: “(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation ‘Patents,’ ‘Patent Attorney,’ ‘Patent Lawyer,’ or ‘Registered Patent Attorney’ or any combination of those terms, on his letterhead and office sign. “(2) A lawyer engaged in the trademark practice may use the designation ‘Trademarks,’ ‘Trademark Attorney’ or ‘Trademark Lawyer,’ or a combination of those terms, and a lawyer engaged in the admiralty practice may use the designation ‘Admiralty,’ ‘Proctor in Admiralty’ or ‘Admiralty Lawyer,’ or a combination of those terms, in any form of communication otherwise permitted under Rules 2-101 through 2-104.” 126 Ill. 2d, at 406-407, 534 N. E. 2d, at 984-985. The court noted some ambiguity and inconsistency in the descriptions of required trial experience: by petitioner as 40 jury trials carried to verdict, by amicus Association of Trial Lawyers of America as 15 major cases carried to verdict, and by amicus NBTA as 15 complete trials to verdict, at least 5 of which were to a	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
UNITED CALIFORNIA BANK et al., CO-EXECUTORS v. UNITED STATES No. 77-1016. Argued October 4, 1978 Decided December 11, 1978 White, J., delivered the opinion of the Court, in which BURGER, C. J., - and BRENNAN, Marshall, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which Stewart and RehNquist, JJ., joined, post, p. 200. Ronald E. Gother argued the cause for petitioners. With him on the briefs was Marc R. Isaacson. Assistant Attorney General Ferguson argued the cause for the United States. With him on the brief were Solicitor General McCree, Stuart A. Smith, and Jonathan S. Cohen. Mr. Justice White delivered the opinion of the Court. Under the provisions of the Internal Revenue Code of 1954 in effect during the years in question, taxpayers, including decedents’ estates, with net long-term capital gains exceeding net short-term capital losses, paid either a “normal” income tax calculated by applying ordinary graduated rates to taxable income computed with a 50% capital-gains deduction permitted by § 1202 of the Code or, if it was a lesser sum, the alternative tax calculated as directed by § 1201 (b). Under the latter section the taxable income for normal tax purposes was first reduced by the portion of the capital gain remaining in that figure, and the regular tax rates were then applied to the resulting amount. To this partial tax was added an amount equivalent to 25 % of the “excess of the net long-term capital gain over the net short-term capital loss.” The issue here involves the computation of the alternative tax of a decedent’s estate that had net long-term capital gains, a portion of which — pursuant to the terms of the decedent’s will — was “during the taxable year, paid or permanently set aside” for charitable purposes within the meaning of § 642 (c), 26 U. S. C. § 642 (c) (1964 ed.). That section permitted an estate to deduct “without limitation” amounts designated for charitable purposes by the controlling instrument, subject, however, to “proper adjustment... for any deduction allowable to the estate or trust under section 1202....” I Walter E. Disney, who died in 1966, left 45% of the residue of his estate by will to a designated charitable trust. During the years 1967 and 1968, petitioners, executors of the estate, sold securities making up part of the residue of the estate, thereby realizing a long-term capital gain in the amount of $500,622.38 in 1967 and $1,058,018.43 in 1968. There were no short-term capital losses, but a net short-term capital gain of $16,944.16 was realized in 1967. Forty-five percent of the net long-term capital gain was set aside as part of the residue of the estate for the benefit of the specified charity. In their fiduciary income tax returns for these years, the executors sought to use the alternative tax prescribed by § 1201 (b). In computing this tax, they excluded from the long-term capital gain to which the alternative tax was applicable the 45% portion of long-term gain permanently set aside for charity. The District Director disallowed this exclusion, without which the alternative tax was higher than the normal tax computed with the § 1202 capital-gains deduction. The normal tax rather than the alternative tax was therefore due. Additional taxes were assessed and paid, and this suit for refund followed. Agreeing with the judgment of the Court of Appeals for the Second Circuit in Statler Trust v. Commissioner, 361 F. 2d 128 (1966), the District Court sustained the executors’ position that, in computing the alternative tax under § 1201 (b), any amount deductible by the estate from its gross income as being permanently set aside for charity could be excluded from the net long-term capital gain subject to the alternative tax. The Court of Appeals reversed, 563 F. 2d 400 (CA9 1977), holding that the alternative tax was to be computed on the total excess of net long-term capital gains over net short-term capital losses, unreduced by any amount deductible by the estate as a charitable set-aside under § 642 (c). The court expressly disagreed with the decision in Statler Trust, supra. We granted the executors’ petition for certiorari, 435 U. S. 922 (1978). In this Court, as in the courts below, the parties agree on the method of calculating the normal tax but sharply disagree in regard to the proper computation of the alternative tax under § 1201 (b). To illustrate, the normal tax for 1967 amounted to $88,000 in round figures. According to the executors, the alternative tax was $70,800, which, being a lesser amount than the normal tax, would be the amount due. The Government calculates the alternative tax to be $125,000 and thus insists that the normal tax in the amount of $88,000 was properly payable. As we have indicated, resolution of the issue turns on whether the net long-term gain to which the alternative tax is applicable is permissibly reducible by the amount of the charitable set-asides in the years in question. On this score, we agree with the executors and reverse the Court of Appeals. II The Government’s position rests on what it deems to be the plain language of § 1201 (b), which directs that the “excess of the net long-term capital gain over the net short-term capital loss” be taxed. This language, it is said, unambiguously embraces income distributed to or set aside for charitable beneficiaries, even though in their hands the same income would be tax exempt. The difficulty with the Government’s position is that § 1201 (b) is not always understood to mean what it seems to say. The Government concedes here that if 45% of the net long-term gain had been distributable to taxable beneficiaries rather than to charity, the net long-term gain subject to the § 1201 (b) alternative tax would have been reduced to the extent of the noncharitable distribution, despite the failure of the section’s language to provide for this treatment. In that event, the alternative tax would have been $70,800, precisely the amount due by the executors’ computation where the 45% distribution or set-aside is for charitable purposes. Thus, it cannot be said that § 1201 (b) never permits reduction of the total net long-term capital gain in response to imperatives emerging from other sections of the Code. The Government explains its application of § 1201 (b) to capital gains distributable to noncharitable beneficiaries by-noting that the Internal Revenue Code of 1954 manifests a general pattern of treating estates and trusts as conduits for distributable income. Accordingly, although estates are taxable entities, their distributable income is taxable to the beneficiaries rather than to the estates. Hence, to avoid assessing taxes against both the estate and its beneficiaries, the amounts includable in the beneficiaries’ gross income are excluded in computing the estate’s alternative tax. Sections 661 (a) and 662 (a) are the sections said to implement this end. Section 661 (a) permits an estate or trust to deduct from its gross income any income required to be distributed currently and any other amount properly paid or credited or required to be distributed for the taxable year. Section 662 (a) in turn essentially directs a beneficiary to include in its gross income amounts described in § 661 (a). We agree that these provisions of the Code provide a sound justification for treating income distributable to taxable beneficiaries as belonging to them rather than to the estate and hence for reducing the net long-term gain to be taxed to the estate under § 1201 (b) by the amount of gain distributable and taxable to the beneficiary. We also agree, as do the executors, that because § 663 provides expressly that amounts qualifying as charitable deductions under § 642 (c) “shall not be included as amounts falling within section 661 (a) or 662 (a),” charitable distributions or set-asides are not within the conduit system applicable to noncharitable beneficiaries. We reject the Government’s view, however, that this explanation for the application of § 1201 to taxable distributions of capital-gains income also negates similar treatment for amounts of current income that are distributed to, or permanently set aside for, charitable beneficiaries and that are deductible by the estate under § 642 (c). Indeed, the latter section serves to extract income destined for charitable entities from the taxable income of the estate and thus supplies a conduit for charitable contributions similar to that provided by §§ 661 (a) and 662 (a) in regard to income passing to taxable distributees. The express exclusion from §§ 661 (a) and 662 (a) of those amounts deductible under § 642 (c) in no way refutes conduit treatment of such amounts. Rather, the exclusion pursuant to § 663 prevents a second deduction for charitable set-asides and recognizes as well that they are accorded separate treatment elsewhere under the Code. The Government makes much of § 1202’s directive to exclude capital gains distributable to taxable beneficiaries in computing the capital-gains deduction, and of the absence of a similar mandate with respect to charitable distributions or set-asides, which are only subject to a deduction under § 642 (c). Hence, it is argued, income distributions to charity are not to be considered the property of the beneficiary in the same sense as income passing to taxable entities is attributed to the distributees. We doubt that so much should turn on § 1202. The provision having the operative role in removing the noncharitable distribution from the estate income is § 661 (a), and that section unmistakably provides a deduction for such sums, just as § 642 (c) permits deductions for distributions to nontaxable entities. Nor do we agree that charitable and noncharitable distributions of long-term gain should be regarded differently because in the one case the distribution is taxable in the hands of the beneficiary and in the other it is tax free. Indeed, it is arguable that the reduction of the gain taxable under § 1201 (b) is even more justified when the income distribution is not only deductible from estate income but also looked upon with such favor that it is not taxable at all in the hands of the dis-tributee. Furthermore, distributions of income to taxable beneficiaries retain the same character in their hands as they had in the hands of the estate. 26 U. S. C. § 662 (b) (1964 ed.). If such distributions are wholly or partly composed of capital gain, the distributee treats them as such in his own return. He is entitled to offset the gain with his own capital losses that accrued in other transactions having nothing to do with the estate. He may, therefore, suffer no tax at all on the gain. Nevertheless, and even though the estate would have paid a tax on the capital gain had it not been distributable, the estate’s net long-term capital gain for § 1201 (b) purposes would be reduced by the amount of the distribution. The executors’ position, with which we agree, is that a similar reduction of the net long-term gain taxable under § 1201 should not be denied simply because the beneficiary is a charity that will pay no tax on the gain set aside for it. As the Government and the Court of Appeals construe the Internal Revenue Code, the estate in this case, which set aside part of its capital gain for charity, must pay a higher income tax than if the same portion of capital gain had been distributed to a taxable beneficiary. Because the tax will inevitably reduce the residue, the burden of the extra tax will be borne either by the charities themselves or by noncharitable residual legatees. We doubt that Congress intended either result. The former allocation would contravene the statutory provision for the deduction of charitable set-asides — § 642 (c) provides for their deductibility “without limitation” — and would indirectly offend the exemption extended to charities by § 501. Allocating the burden to the noncharitable legatees would result in taxation of the capital gain accruing to their benefit at an effective rate higher than the 25% ceiling that § 1201 was intended to impose on the taxation of net long-term capital gain. If all of the net long-term capital gain in this case had been added to corpus and none distributed to or set aside for charity, there is no doubt that the estate’s alternative tax would have been lower than its normal tax and the tax on its net gain would have been limited to 25%. We cannot agree that the estate is not to have the full benefit of the 25% ceiling simply because part of its gain is set aside for a tax-exempt entity. Ill In support of its position, the Government presents an interesting history of the income taxation of capital gains. The central submission of this exegesis is that in 1924 taxpayers were permitted to deduct the excess of ordinary deductions over ordinary income from capital gains subject to an alternative tax otherwise resembling § 1201, see Revenue Act of 1924, § 208 (a) (5), 43 Stat. 262, but that in 1938, when the alternative tax in its present form emerged, no allowance was made for reduction of the gain subject to the alternative tax by ordinary losses, see Revenue Act of 1938, § 117 (c)(1), 52 Stat. 501. This development is interpreted by the Government — mistakenly we think — as a deliberate rejection of the computational method advocated by the executors. The issue here is not whether an excess of deductions over ordinary income may serve generally to reduce the gain subject to the alternative tax; rather, the inquiry concerns whether there is income properly attributable to the charitable beneficiary that should not be taxed to the estate at all. Assuredly, had all of the capital gain been set aside for charity and had there been no other estate income, there would have been no tax at all; the § 642 charitable deduction would have negated the entire capital-gains income of the estate, thus subjecting no taxable income whatsoever to the normal tax. Equally clear is that when 45% of the capital gain is set aside for a charitable entity, the gain subject to the normal tax is reduced to that extent. The Government does not dispute that the net effect of this § 1202 computation is to recognize •the entire amount set aside for the exempt organization. The executors now ask no more than full recognition of the conduit principle in the computation of the alternative tax. The legislative history on which the Government relies is not at all incompatible with the general applicability of the conduit concept. In fact, the legislative history of the 1954 Code makes plain that Congress sought rigorously to adhere “to the conduit theory of the existing law[, which] means that an estate or trust is in general treated as a conduit through which income passes to the beneficiary.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., 61 (1954). IV The Government asserts nonetheless that a ruling favoring the executors would run counter to the Court's decision in United States v. Foster Lumber Co., 429 U. S. 32 (1976), rendered two Terms ago. That case involved § 172 of the Internal Revenue Code of 1954, 26 U. S. C. § 172 (1964 ed.), which provided that a net operating loss incurred by a corporate taxpayer in one year may be carried as a deduction against taxable income for preceding years. The issue was whether a loss was absorbed by capital gain in addition to ordinary income in the year to which it was first carried, or whether it was limited to offsetting only ordinary income. Section 172 in terms provided that, when a loss had been carried back to the first available year, it survived for carryover to subsequent periods only to the extent that it exceeded the taxable income of the earlier year. Because taxable income was defined generally in the Code to include both capital gain and ordinary income, the Court concluded that a loss carryback must be applied to the sum of the two. The taxpayer in Foster Lumber never disputed that losses in carryover years could not be deducted from capital gain in executing the second step of the alternative tax. In fact, because of that limitation, the taxpayer insisted that loss carrybacks should not be treated as absorbed by capital gains for purposes of § 172. Otherwise, in utilizing the alternative tax, the taxpayer would lose the benefit of that portion of the loss corresponding to capital gain. In rejecting the taxpayer’s contention, the Court "noted that relevant legislative history belied any notion of a congressional intention to ameliorate all “wastage” of loss deductions. It was able to conclude that “Congress has not hesitated in this area to limit taxpayers to the enjoyment of one tax benefit even though it could have made them eligible for two.” 429 U. S., at 46. The Government maintains that the executors’ construction of the alternative tax conflicts with our assessment of its operation in Foster Lumber. The executors, in the Government’s view, are no more entitled to exclude charitable set-asides in computing the second component of the alternative tax than was the taxpayer in Foster Lumber able to subtract excess ordinary deductions. But the construction of the alternative tax accepted by both parties in Foster Lumber, and assumed valid by this Court, merely accorded recognition to decisions discerning a congressional refusal — evidenced by the legislative history discussed in Part III, supra — to permit subtraction of ordinary losses from capital gains in the application of § 1201. The executors do not deny that a taxpayer cannot reduce capital gains by the amount of ordinary losses in figuring the alternative tax, but argue that capital gains set aside for charity are not taxable to an estate to begin with. The Government acknowledges that there is ample support in the provisions of Subchapter J for reducing the estate’s net long-term capital gain by amounts distributable to taxable beneficiaries, and that Foster Lumber is thus distinguishable in that context. We believe the decision is similarly inapposite when charitable beneficiaries are involved. We think, then, that the Court of Appeals for the Second Circuit arrived at the correct result in the Statler Trust case. The court there recognized what this Court had earlier said: that currently distributable income is not treated “as the [estate's] income, but as the beneficiary’s,” whose “share of the income is considered his property from the moment of its receipt by the estate.” Freuler v. Helvering, 291 U. S. 35, 41-42 (1934). That principle survived in substance in the 1954 Code; and to treat differently charitable and nonchari-table distributions of capital gain for the purpose of computing the alternative tax under § 1201 (b) “stresses the form at the neglect of substance.” Statler Trust v. Commissioner, 361 P. 2d, at 131. We agree with the Second Circuit that “the letter of § 1201 (b) must yield when it would lead to an unfair and unintended result.” Ibid. The judgment of the Court of Appeals is reversed. It is so ordered. Subchapter J of the Code, 26 U. S. C. §641 et seq. (1964 ed.), deals with the taxation of estates, trusts, beneficiaries, and decedents. Section 641 (b) provides that the tax on estates and trusts “shall be computed in the same manner as in the case of an individual, exeept as otherwise provided in this part.” Title 26 U. S. C. § 1202 (1964 ed.) provides: “In the case of a taxpayer other than a. corporation, if for any taxable year the net long-term capital gain exceeds the net short-term capital loss, 50 percent of the amount of such excess shall be a deduction from gross income. In the case of an estate or trust, the deduction shall be computed by excluding the portion (if any), of the gains for the taxable year from sales or exchanges of capital assets, which, under sections 652 and 662 (relating to inclusions of amounts in gross income of beneficiaries of trusts), is includible by the income beneficiaries as gain derived from the sale or exchange of capital assets.” Title 26 U. S. C. § 1201 (b) (1964 ed.) provides: “(b) Other taxpayers. “If for any taxable year the net long-term capital gain of any taxpayer (other than a corporation) exceeds the net short-term capital loss, then, in lieu of the tax imposed by sections 1 and 511, there is hereby imposed a tax (if such tax is less than the tax imposed by such sections) which shall consist of the sum of— “(1) a partial tax computed on the taxable income reduced by an amount equal to 50 percent of such excess, at the rate and in the manner as if this subsection had not been enacted, and “(2) an amount equal to 25 percent of the excess of the net long-term capital gain over the net short-term capital loss.” Because the estate incurred no short-term or long-term capital losses in 1967 and 1968, for brevity’s sake we sometimes speak simply of “net long-term capital gain” or “capital gain.” Title 26 U. S. C. § 642 (c) (1964 ed.) provides in relevant part: “(c) Deduction for amounts paid or permanently set aside for a charitable purpose. “In the case of an estate or trust (other than a trust meeting the specifications of subpart B) there shall be allowed as a deduction in computing its taxable income (in lieu of the deductions allowed by section 170 (a), relating to deduction for charitable, etc., contributions and gifts) any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid or permanently set aside for a purpose specified in section 170 (c), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, or for the establishment, acquisition, maintenance or operation of a public cemetery not operated for profit. For this purpose, to the extent that such amount consists of gain from the sale or exchange of capital assets held for more than 6 months, proper adjustment of the deduction otherwise allowable under this subsection shall be made for any deduction allowable to the estate of trust under section 1202 (relating to deduction for excess of capital gains over capital losses) Where the § 642 (c) charitable set-aside includes net long-term capital gain, the adjustment avoids a redundant subtraction of income destined for charitable beneficiaries. Its effect is to reduce the charitable deduction by one-half so as to reflect that part of the deduction already included in the 50% capital-gain deduction under § 1202. As indicated later in the text, the parties are not in dispute as to the interworkings of §§ 1202 and 642 (c). It is agreed, moreover, that the set-asides at issue were intended for a charitable entity within the meaning of 26 U. S. C. §§ 170 (c)(2), 501 (c)(3) (1964 ed.). Section 170 permits deductions for contributions to charitable organizations, and § 501 affords a tax exemption to the organizations themselves. The agreed method for computing the normal tax may be illustrated by utilizing the 1967 figures, rounded off: Normal tax Estate gross income, including long-term capital gain of $500,000 $595,000 Less: § 1202 deduction (50% of $500,000 net long-term capital gain) (250,000) Charitable deduction (remaining 50% of $225,000 charitable set-aside, plus $32,500 attributable to short-term capital gain and ordinary income set aside for charitable legatees) (145,000) Miscellaneous deductions (54,000) Estate taxable income 146,000 Tax (at normal rates) $88,000 The executors’ application of § 1201 (b) to income for 1967 approximated the following: Alternative tax Estate taxable income $146,000 Less: 50% reduction of net long-term capital gain under § 1201 (b) (1) (137,500) The executors reduced the long-term capital gain of $500,000 by the 45% paid to charity (or $225,000), leaving a balance of $275,000 (50% of $275,000=$137,500) Partial taxable income 8,500 Tax (at normal rates) on partial _ taxable income 1,800 Plus: tax on long-term capital gain (25% of $275,000) under § 1201 (b) (2) 69,000 Total tax $70,800 The Government’s computation, using approximate 1967 figures, was as follows: Alternative tax Estate taxable income $146,000 Less: 50% reduction of net long-term capital gain under § 1201 (b) (1) (250,000) The capital-gain figure employed reflects the entire $500,000 of long-term capital gain unreduced by the amounts set aside for charity Partial taxable income -0- Tax (at normal rates) on partial taxable income -0- Plus: tax on long-term capital gain (25% of $500,000) under § 1201 (b) (2) 125,000 Total tax $125,000 The alternative tax has been applied flexibly in another context to effectuate a clear congressional policy facially inconsistent with the language of § 1201. It has been held that the income tax deduction permitted by 26 U. S. C. § 691 (c) for the amount of estate tax attributable to income in respect of a decedent can be offset against the estate’s capital gains before application of the alternative tax. The deduction was thought necessary to honor the congressional purpose animating the § 691 (c) deduction of avoiding imposition of both estate and income taxes on sums included in an estate as income in respect of a decedent. See, e. g., Read v. United States, 320 F. 2d 550 (CA5 1963); Meissner v. United States, 176 Ct. Cl. 684, 364 F. 2d 409 (1966); Estate of Sidles v. Commissioner, 65 T. C. 873 (1976), acq. 1976-2 Cum. Bull. 2. Title 26 U. S. C. § 661 (a) (1964 ed.) states: “(a) Deduction. “In any taxable year there shall be allowed as a deduction in computing the taxable income of an estate or trust (other than a trust to which subpart B applies), the sum of— “(1) any amount of income for such taxable year required to be distributed currently (including any amount required to be distributed which may be paid out of income or corpus to the extent such amount is paid out of income for such taxable year); and “(2) any other amounts properly paid or credited or required to be distributed for such taxable year; “but such deduction shall not exceed the distributable net income of the estate or trust.” Title 26 TJ. S. C. § 662 (a) (1964 ed.) provides: “(a) Inclusion. “Subject to subsection (b), there shall be included in the gross income of a beneficiary to whom an amount specified in section 661 (a) is paid, credited, or required to be distributed (by an estate or trust described in section 661), the sum of the following amounts: “(1) Amounts required to be distributed currently. “The amount of income for the taxable year required to be distributed currently to such beneficiary, whether distributed or not. If the amount of income required to be distributed currently to all beneficiaries exceeds the distributable net income (computed without the deduction allowed by section 642 (c), relating to deduction for charitable, etc., purposes) of the estate or trust, then, in lieu of the amount provided in the preceding sentence, there shall be included in the gross income of the beneficiary an amount which bears the same ratio to distributable net income (as so computed) as the amount of income required to be distributed currently to such beneficiary bears to the amount required to be distributed currently to all beneficiaries. For purposes of this section, the phrase ‘the amount of income for the taxable year required to be distributed currently’ includes any amount required to be paid out of income or corpus to the extent such amount is paid out of income for such taxable year. “ (2) Other amounts distributed. “All other amounts properly paid, credited, or required to be distributed to such beneficiary for the taxable year. If the sum of— “(A) the amount of income for the taxable year required to be distributed currently to all beneficiaries, and “(B) all other amounts properly paid, credited, or required to be distributed to all beneficiaries “exceeds the distributable net income of the estate or trust, then, in lieu of the amount provided in the preceding sentence, there shall be included in the gross income of the beneficiary an amount which bears the same ratio to distributable net income (reduced by the amounts specified in (A)) as the other amounts properly paid, credited or required to be distributed to the beneficiary bear to the other amounts properly paid, credited, or required to be distributed to all beneficiaries.” The amount deductible by the estate under § 661 (a) and includable in the gross income of the beneficiaries under § 662 (a) is generally limited by “distributable net income,” defined in 26 U. S. C. § 643 (a) (1964 ed.) as taxable income computed with certain modifications. One such modification is the exclusion of “[g]ains from the sale or exchange of capital assets... to the extent that such gains are allocated to corpus and are not (A) paid, credited, or required to be distributed to any beneficiary during the taxable year, or (B) paid, permanently set aside, or to be used for the purposes specified in section 642 (c).” § 643 (a) (3). Section 643 (a) (3) has been variously interpreted by the Second and Ninth Circuits and by the parties in the course of this litigation. The Second Circuit in Statler Trust considered capital gains set aside for charity to be “inclu[ded] in the definition of distributable net income in § 643 (a)(3),” 361 F. 2d, at 131, hence indicating conduit treatment for such set-asides. The court below announced a more expansive view. It implied that all “[a]mounts distributed or set aside to charity... remain in distributable net income,” whether consisting of capital gain or ordinary income. 563 F. 2d, at 404. This construction was thought supportive of the Government’s position on the theory that “ ‘conduit’ treatment	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
SWANN et al. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al. No. 281. Argued October 12, 1970 Decided April 20, 1971 Burger, C. J., delivered the opinion for a unanimous Court. Julius LeVonne Chambers and James M. Nabrit III argued the cause for petitioners in No. 281 and respondents in No. 349. With them on the briefs were Jack Greenberg, Norman J. Chachkin, C. O. Pearson, and Anthony G. Amsterdam. William J. Wagonner and Benjamin S. Horack argued the cause and filed briefs for respondents in No. 281 and petitioners in No. 349. Solicitor General Griswold argued the cause for the United States as amicus curiae in both cases. With him on the brief was Assistant Attorney General Leonard. Briefs of amici curiae in No. 281 were filed by Earl Faircloth, Attorney General, Robert J. Kelly, Deputy Attorney General, Ronald W. Sabo, Assistant Attorney General, and Rivers Buford for the State of Florida; by Andrew P. Miller, Attorney General, William G. Broad-dus and Theodore J. Markow, Assistant Attorneys General, Lewis F. Poioell, Jr., John W. Riely, and Guy K. Tower for the Commonwealth of Virginia; by Claude R. Kirk, Jr., pro se, and Gerald Mager for Claude R. Kirk, Jr., Governor of Florida; by W. F. Womble for the Winston-Salem/Forsyth County Board of Education; by Raymond B. Witt, Jr., and Eugene N. Collins for the Chattanooga Board of Education; by Kenneth W. Cleary for the School Board of Manatee County, Florida; by W. Crosby New and John M. Allison for the School Board of Hillsborough County, Florida; by Sam J. Ervin, Jr., Charles R. Jonas, and Ernest F. Hoilings for the Classroom Teachers Association of the Charlotte-Mecklenburg School System, Inc.; by Mark Wells White, Jr., for Mrs. H. W. Cullen et al., members of the Board of Education of the Houston Independent School District; by Jack Petree for the Board of Education of Memphis City Schools; by Sherwood W. Wise for the Jackson Chamber of Commerce, Inc., et al.; by Stephen J. Poliak, Benjamin W. Boley, and David Rubin for the National Education Association; by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.; by Owen H. Page for Concerned Citizens Association, Inc.; by Charles S. Conley, Floyd B. McKissick, and Charles S. Scott for the Congress of Racial Equality; by the Tennessee Federation for Constitutional Government et al.; by William C. Cramer, pro se, and Richard B. Peet, joined by Albert W. Watson et al., for William C. Cramer; by Charles E. Bennett, pro se, James C. Rinaman, Jr., and Yardley D. Buckman for Charles E. Bennett; by Calvin H. Childress and M. T. Bohannon, Jr., for David E. Allgood et al.; by William B. Spong, Jr., and by Newton Collier Estes. Togetlier with No. 349, Charlotte-Mecklenburg Board of Education et al. v. Swann et al., also on certiorari to the same court. Me. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court's mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I). This case and those argued with it arose in States having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court’s general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other federal courts had to grapple with the flinty, intractable realities of day-to-day implementation of those constitutional commands. Their efforts, of necessity, embraced a process of “trial and error,” and our effort to formulate guidelines must take into account their experience. I The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large — 550 square miles — spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white and 29% Negro. As of June 1969 there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000 — approximately 14,000 Negro students — attended 21 schools which were either totally Negro or more than 99% Negro. This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation, in 1965, 243 F. Supp. 667 (WDNC), aff’d, 369 F. 2d 29 (CA4 1966), based upon geographic zoning with a free-transfer provision. The present proceedings were initiated in September 1968 by petitioner Swann’s motion for further relief based on Green v. County School Board, 391 U. S. 430 (1968), and its companion cases. All parties now agree that in 1969 the system fell short of achieving the unitary school system that those cases require. The District Court held numerous hearings and received voluminous evidence. In addition to finding certain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of immediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals. In April 1969 the District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August 1969 on an interim basis only, and the board was ordered to file a third plan by November 1969. In November the board moved for an extension of time until February 1970, but when that was denied the board submitted a partially completed plan. In December 1969 the District Court held that the board’s submission was unacceptable and appointed an expert in education administration, Dr. John Finger, to prepare a desegregation plan. Thereafter in February 1970, the District Court was presented with two alternative pupil assignment plans — the finalized “board plan” and the “Finger plan.” The Board Plan. As finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance zones to achieve greater racial balance but maintained existing grade structures and rejected techniques such as pairing and clustering as part of a desegregation effort. The plan created a single athletic league, eliminated the previously racial basis of the school bus system, provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into an optional majority-to-minority transfer system. The board plan proposed substantial assignment of Negroes to nine of the system’s 10 high schools, producing 17% to 36% Negro population in each. The projected Negro attendance at the 10th school, Independence, was 2%. The proposed attendance zones for the high schools were typically shaped like wedges of a pie, extending outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools. As for junior high schools, the board plan rezoned the 21 school areas so that in 20 the Negro attendance would range from 0% to 38%. The other school, located in the heart of the Negro residential area, was left with an enrollment of 90% Negro. The board plan with respect to elementary schools relied entirely upon gerrymandering of geographic zones. More than half of the Negro elementary pupils were left in nine schools that were 86% to 100% Negro; approximately half of the white elementary pupils were assigned to schools 86% to 100% white. The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board zoning plan for senior high schools with one modification: it required that an additional 300 Negro students be transported from the Negro residential area of the city to the nearly all-white Independence High School. The Finger plan for the junior high schools employed much of the rezoning plan of the board, combined with the creation of nine “satellite” zones. Under the satellite plan, inner-city Negro students were assigned by attendance zones to nine outlying predominately white junior high schools, thereby substantially desegregating every junior high school in the system. The Finger plan departed from the board plan chiefly in its handling of the system’s 76 elementary schools. Rather than relying solely upon geographic zoning, Dr. Finger proposed use of zoning, pairing, and grouping techniques, with the result that student bodies throughout the system would range from 9% to 38% Negro. The District Court described the plan thus: “Like the board plan, the Finger plan does as much by rezoning school attendance lines as can reasonably be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegregates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school.” Under the Finger plan, nine inner-city Negro schools were grouped in this manner with 24 suburban white schools. On February 5, 1970, the District Court adopted, the board plan, as modified by Dr. Finger, for the junior and senior high schools. The court rejected the board elementary school plan and adopted the Finger plan as presented. Implementation was partially stayed by the Court of Appeals for the Fourth Circuit on March 5, and this Court declined to disturb the Fourth Circuit’s order, 397 U. S. 978 (1970). On appeal the Court of Appeals affirmed the District Court’s order as to faculty desegregation and the secondary school plans, but vacated the order respecting 'elementary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system’s pupils. The case was remanded to the District Court for reconsideration and submission of further plans. 431 F. 2d 138. This Court granted certiorari, 399 U. S. 926, and directed reinstatement of the District Court’s order pending further proceedings in that court. On remand the District Court received two new plans for the elementary schools: a plan prepared by the United States Department of Health, Education, and Welfare (the HEW plan) based on contiguous grouping and zoning of schools, and a plan prepared by four members of the nine-member school board (the minority plan) achieving substantially the same results as the Finger plan but apparently with slightly less transportation. A majority of the school board declined to amend its proposal. After a lengthy evidentiary hearing the District Court concluded that its own plan (the Finger plan), the minority plan, and an earlier draft of the Finger plan were all reasonable and acceptable. It directed the board to adopt one of the three or in the alternative to come forward with a new, equally effective plan of its own; the court ordered that the Finger plan would remain in effect in the event the school board declined to adopt a new plan. On August 7, the board indicated it would “acquiesce” in the Finger plan, reiterating its view that the plan was unreasonable. The District Court, by order dated August 7, 1970, directed that the Finger plan remain in effect. II Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. None of the parties before us challenges the Court’s decision of May 17, 1954, that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated... are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.... “Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.” Brown v. Board of Education, supra, at 495. None of the parties before us questions the Court’s 1955 holding in Brown II, that “School authorities have the primary responsibility for elucidating, assessing, and solving these problems ; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U. S. 294, 299-300 (1955). Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court’s mandates has impeded the good-faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts. By the time the Court considered Green v. County School Board, 391 U. S. 430, in 1968, very little progress had been made in many areas where dual school systems had historically been maintained by operation of state laws. In Green, the Court was confronted with a record of a freedom-of-choice program that the District Court had found to operate in fact to preserve a dual system more than a decade after Brown II. While acknowledging that a freedom-of-choice concept could be a valid remedial measure in some circumstances, its failure to be effective in Green required that: “The burden on a school board today is to come forward with a plan that promises realistically to work... now... until it is clear that state-imposed segregation has been completely removed.” Green, supra, at 439. This was plain language, yet the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U. S. 19, restated the basic obligation asserted in Griffin v. School Board, 377 U. S. 218, 234 (1964), and Green, supra, that the remedy must be implemented forthwith. The problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts. The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population, movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns. III The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” 391 U. S., at 437--438. If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944), cited in Brown II, supra, at 300. This allocation of responsibility once made, the Court attempted from time to time to provide some guidelines for the exercise of the district judge’s discretion and for the reviewing function of the courts of appeals. However, a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults. School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system. The school authorities argue that the equity powers of federal district courts have been limited by Title IV of the Civil Rights Act of 1964, 42 U. S. C. § 2000c. The language and the history of Title IV show that it was enacted not to limit but to define the role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of Education to provide technical assistance to local boards in the preparation of desegregation plans, to arrange “training institutes” for school personnel involved in desegregation efforts, and to make grants directly to schools to ease the transition to unitary systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c (b) defines “desegregation” as it is used in Title IV: “ ‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.” Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso: “nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.” On their face, the sections quoted purport only to insure that the provisions of Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The proviso in § 2000c-6 is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called “de facto segregation,” where racial imbalance exists in the schools but with no showing that this was brought about by discriminatory action of state authorities. In short, there is nothing in the Act that provides us material assistance in answering the question of remedy for state-imposed segregation in violation of Brown I. The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” IY We turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause. Although the several related cases before us are primarily concerned with problems of student assignment, it may be helpful to begin with a brief discussion of other aspects of the process. In Green, we pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system. 391 U. S., at 435. Independent of student assignment, where it is possible to identify a “white school” or a “Negro school” simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima jade case of violation of substantive constitutional rights under the Equal Protection Clause is shown. When a system has been dual in these respects, the first remedial responsibility of school authorities is to eliminate invidious racial distinctions. With respect to such matters as transportation, supporting personnel, and extracurricular activities, no more than this may be necessary. Similar corrective action must be taken with regard to the maintenance of buildings and the distribution of equipment. In these areas, normal administrative practice should produce schools of like quality, facilities, and staffs. Something more must be said, however, as to faculty assignment and new school construction. In the companion Davis case, post, p. 33, the Mobile school board has argued that the Constitution requires that teachers be assigned on a “color blind” basis. It also argues that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. We reject that contention. In United States v. Montgomery County Board of Education, 395 U. S. 225 (1969), the District Court set as a goal a plan of faculty assignment in each school with a ratio of white to Negro faculty members substantially the same throughout the system. This order was predicated on the District Court finding that: “The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year 1968-69.” Quoted at 395 U. S., at 232. The District Court in Montgomery then proceeded to set an initial ratio for the whole system of at least two Negro teachers out of each 12 in any given school. The Court of Appeals modified the order by eliminating what it regarded as “fixed mathematical” ratios of faculty and substituted an initial requirement of “substantially or approximately” a five-to-one ratio. With respect to the future, the Court of Appeals held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified proportions. Id., at 234. We reversed the Court of Appeals and restored the District Court’s order in its entirety, holding that the order of the District Judge “was adopted in the spirit of this Court’s opinion in Green... in that his plan 'promises realistically to work, and promises realistically to work now.’ The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes a reality instead of a hope.... We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II... by accepting the more specific and expeditious order of [District] Judge Johnson....” 395 U. S., at 235-236 (emphasis in original). The principles of Montgomery have been properly followed by the District Court and the Court of Appeals in this case. The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of “neighborhood zoning.” Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with “neighborhood zoning,” further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy. In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. When necessary, district courts should retain jurisdiction to assure that these responsibilities are carried out. Cf. United States v. Board of Public Instruction, 395 F. 2d 66 (CA5 1968); Brewer v. School Board, 397 F. 2d 37 (CA4 1968). V The central issue in this case is that of student assignment, and there are essentially four problem areas: (1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system; (2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation; (3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and (4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation. (1) Racial Balances or Racial Quotas. The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems. We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
ARDESTANI v. IMMIGRATION AND NATURALIZATION SERVICE No. 90-1141. Argued October 8, 1991 Decided December 10, 1991 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, and Souter, JJ., joined. Black-mun, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 139. Thomas, J., took no part in the consideration or decision of the case. David N. Soloway argued the cause for petitioner. With him on the briefs was Carolyn F Soloway. Deputy Solicitor General Wallace argued the cause for respondent. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Harriet S. Shapiro, William Kanter, and John S. Koppel. Lawrence H. Rudnick filed a brief for the American Immigration Lawyers Association as amicus curiae urging reversal. John J. Curtin, Jr., Robert E. Juceam, Dale M. Schwartz, and Sandra M. Lipsman filed a brief for the American Bar Association as amicus curiae. Justice O’Connor delivered the opinion of the Court. Petitioner Rafeh-Rafie Ardestani prevailed in an administrative deportation proceeding brought by respondent Immigration and Naturalization Service (INS). She sought attorney’s fees and costs under the Equal Access to Justice Act (EAJA), 5 U. S. C. § 504 and 28 U. S. C. § 2412, which provides that prevailing parties in certain adversarial proceedings may recover attorney’s fees from the Government. We now consider whether the EAJA authorizes the award of attorney’s fees and costs for administrative deportation proceedings before the INS. We conclude that it does not. I Ardestani is an Iranian woman of the Bahai faith who entered the United States as a visitor in December 1982. She remained in this country lawfully until the end of May 1984 and then sought asylum. The United States Department of State informed the INS that Ardestani’s fear of persecution upon return to Iran was well founded. In February 1986, however, the INS denied Ardestani’s asylum application on the ground that, before entering the United States, she had reached a “safe haven” in Luxembourg and had established residence there. Ardestani advised the INS that she had been in Luxembourg only three days en route to the United States, that she had stayed in a hotel, and that she had never applied for residency in that country. Nonetheless, the following month, the INS issued an order to show cause why she should not be deported. At the deportation hearing, Ardestani successfully renewed her application for asylum. She then applied for attorney’s fees and costs under the EAJA. The Immigration Judge awarded attorney’s fees in the amount of $1,071.85 based on his determination that Ardestani was the “prevailing party” in the adjudication and that the position of the INS in pursuing her deportation was not “substantially justified.” The INS appealed the award of fees to the Board of Immigration Appeals. The Board vacated and denied the award on the ground that the Attorney General has determined that deportation proceedings are not within the scope of the EAJA. See 28 CFR §24.103 (1991); 46 Fed. Reg. 48921, 48922 (1981) (interim rule). A divided Court of Appeals for the Eleventh Circuit denied Ardestani’s petition for review and held that the EAJA does not apply to administrative deportation proceedings. 904 F. 2d 1505 (1990). We granted certiorari, 499 U. S. 904 (1991), to resolve a conflict among the United States Courts of Appeals and now affirm. II The EAJA provides that prevailing parties in certain adversary administrative proceedings may recover attorney’s fees and costs from the Government. In pertinent part, 5 U. S. C. § 504(a)(1) provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” The EAJA defines an “adversary adjudication” as “an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise.” 5 U. S. C. § 504(b)(l)(C)(i). Section 554 of Title 5, in turn, delineates the scope of proceedings governed by the formal adjudication requirements of the Administrative Procedure Act (APA), see 5 U. S. C. §§ 556, 557, and sets forth some of those requirements. As both parties agree that the United States was represented by counsel in Ardestani’s deportation proceeding, the sole question presented in this case is whether that proceeding was an adversary adjudication “under section 554” within the meaning of the EAJA. A Section 554(a) states that the provisions of that section apply to “every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,” with six statutory exceptions not relevant here. Subsections (b) through (e) of § 554 establish the procedures that must be followed in the agency adjudications described in subsection (a). Although immigration proceedings are required by statute to be determined on the record after a hearing, 8 U. S. C. § 1252(b), we previously have decided that they are not governed by the APA. Marcello v. Bonds, 349 U. S. 302 (1955). In Marcello, we held that Congress intended the provisions of the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq., to supplant the APA in immigration proceedings. Two years before the enactment of the INA, we had concluded that immigration proceedings were subject to the APA. Wong Yang Sung v. McGrath, 339 U. S. 33 (1950). Congress legislatively overruled that decision almost immediately afterward in a rider to the Supplemental Appropriation Act, 1951. 64 Stat. 1044, 1048. In Marcello, we had to determine whether, in revising the immigration laws in 1952 and repealing the rider, Congress had reversed its previous position and reinstated the holding of the Wong Yang Sung case. We held that the INA “expressly supersedes” the hearing provisions of the APA in light of “the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings.” 349 U. S., at 310. Applying our precedent in Marcello, it is clear that Ardes-tani’s deportation proceeding was not subject to the APA and thus not governed by the provisions of § 554. It is immaterial that the Attorney General in 1983 promulgated regulations that conform deportation hearings more closely to the procedures required for formal adjudication under the APA. 48 Fed. Reg. 8038-8040 (1983). Marcello does not hold simply that deportation proceedings are subject to the APA except for specific deviations sanctioned by the INA. Rather, Marcello rests in large part on the statute’s prescription that the INA “shall be the sole and exclusive procedure for determining the deportability of an alien under this section.” INA, § 242(b) (codified at 8 U. S. C. § 1252(b)) (emphasis added); Marcello, supra, at 309. Neither the analysis nor the decision in Marcello leaves open the possibility that the APA should displace the INA in the event that the regulations governing immigration proceedings become functionally equivalent to the procedures mandated for adjudications governed by § 554. B Ardestani’s principal argument is that, for the purposes of the EAJA, deportation proceedings fall “under section 554” because, like the adjudications described in § 554(a), they are “required by statute to be determined on the record after opportunity for an agency hearing.” She thus contends that the phrase “under section 554” encompasses all adjudications “as defined in” § 554(a), even if they are not governed by the procedural provisions established in the remainder of that section. We hold that the meaning of “an adjudication under section 554” is unambiguous in the context of the EAJA and does not permit the reading that Ardestani has urged upon us. “The starting point in statutory interpretation is 'the language [of the statute] itself.’” United States v. James, 478 U. S. 597, 604 (1986) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring)). The word “under” has many dictionary definitions and must draw its meaning from its context. In this case, the most natural reading of the EAJA’s applicability to adjudications “under section 554” is that those proceedings must be “subject to” or “governed by” § 554. Indeed, in addition to the court below, six United States Courts of Appeals have determined that the plain and ordinary meaning of “under” as it appears in the EAJA is that proceedings must be governed by the procedures mandated by the APA. See the cases cited in n. 1, supra. As one court has observed, the word “under” appears several times in the EAJA itself, and “[i]n other locations, no creative reading is possible — ‘under’ means ‘subject [or pursuant] to’ or ‘by reason of the authority of.’ ” St. Louis Fuel & Supply Co. v. FERC, 281 U. S. App. D. C. 329, 333, 890 F. 2d 446, 450 (1989). The “strong presumption” that the plain language of the statute expresses congressional intent is rebutted only in “rare and exceptional circumstances,” Rubin v. United States, 449 U. S. 424, 430 (1981), when a contrary legislative intent is clearly expressed. INS v. Cardoza-Fonseca, 480 U. S. 421, 432, n. 12 (1987); Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). In this case, the legislative history cannot overcome the strong presumption “‘that the legislative purpose is expressed by the ordinary meaning of the words used.’ ” American Tobacco Co. v. Patterson, 456 U. S. 63, 68 (1982) (quoting Richards v. United States, 369 U. S. 1, 9 (1962)). While it is possible, as Ardestani contends, that Congress’ only intent in defining adversary adjudications was to limit EAJA fees to trial-type proceedings in which the Government is represented, Congress chose to refer to adversary adjudications “under section 554.” Section 554 does not merely describe a type of agency proceeding; it also prescribes that certain procedures be followed in the adjudications that fall within its scope. We must assume that the EAJA’s unqualified reference to a specific statutory provision mandating specific procedural protections is more than a general indication of the types of proceedings that the EAJA was intended to cover. We are unable to identify any conclusive statement in the legislative history regarding Congress’ decision to define adversary adjudications under the EAJA by reference to § 554, much less one that would undermine the ordinary understanding of the phrase “under section 554.” It is not enough that the House Conference Committee Report on the EAJA states, without further comment, that adversary adjudications are “defined under” the APA. H. R. Conf. Rep. No. 96-1434, p. 23 (1980). Although it is conceivable that “defined under” means that Congress intended adversary adjudications covered by the EAJA to be those “as defined by” the APA, it could just as easily mean that covered adjudications are “defined as those conducted under” the APA. We are similarly unpersuaded that Congress meant to institute a substantive, rather than a semantic, change when, without explanation, it changed the draft section of the EAJA defining “adversary adjudication” from “an adjudication subject to section 554,” S. Rep. No. 96-253, p. 24 (1979) (emphasis added), to “an adjudication under section 554.” Our conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language is reinforced in this case by the limited nature of waivers of sovereign immunity. The EAJA renders the United States liable for attorney’s fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Library of Congress v. Shaw, 478 U. S. 310, 318 (1986); Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983). Because we conclude that administrative immigration proceedings do not fall “under section 554” and therefore are wholly outside the scope of the EAJA, this case is distinguishable from those cases in which we have recognized that, once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U. S. 11, 118 (1979); see, e. g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) (“Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver”); Sullivan v. Hudson, 490 U. S. 877, 892 (1989) (holding that Social Security administrative proceedings held on remand from a district court order “are an integral part of the ‘civil action’ for judicial review,” and thus that attorney’s fees for representation on remand are available under the civil action provisions of the EAJA, 28 U.S. C. §2412). Finally, we consider Ardestani’s argument that a functional interpretation of the EAJA is necessary in order to further the legislative goals underlying the statute. The clearly stated objective of the EAJA is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority. Congressional Findings and Purposes, 94 Stat. 2325, note following 5 U. S. C. § 504; H. R. Rep. No. 96-1418, pp. 10,12 (1980); S. Rep. No. 96-253, supra, at 5; Commissioner, INS v. Jean, 496 U. S. 154, 163 (1990). We have no doubt that the broad purposes of the EAJA would be served by making the statute applicable to deportation proceedings. We are mindful that the complexity of immigration procedures, and the enormity of the interests at stake, make legal representation in deportation proceedings especially important. We acknowledge that Ardestani has been forced to shoulder the financial and emotional burdens of a deportation hearing in which the position of the INS was determined not to be substantially justified. But we cannot extend the EAJA to administrative deportation proceedings when the plain language of the statute, coupled with the strict construction of waivers of sovereign immunity, constrain us to do otherwise. Congress has twice expanded the EAJA’s definition of “adversary adjudications” to include proceedings previously considered to be outside the EAJA’s coverage. In 1985, Congress legislatively overruled Fidelity Construction Co. v. United States, 700 F. 2d 1379 (CA Fed.), cert. denied, 464 U. S. 826 (1983), by amending § 504(b)(1)(C) to add certain proceedings under the Contract Disputes Act of 1978. See Pub. L. 99-80, § 1(c)(2)(B), 99 Stat. 184. In 1986, Congress amended the same section to add proceedings under the Program Fraud Civil Remedies Act of 1986. See Pub. L. 99-509, § 6103(c), 100 Stat. 1948. In this case as well, it is the province of Congress, not this Court, to decide whether to bring administrative deportation proceedings within the scope of the statute. III We hold that administrative deportation proceedings are not adversary adjudications “under section 554” and thus do not fall within the category of proceedings for which the EAJA has waived sovereign immunity and authorized the award of attorney’s fees and costs. We thus need not reach the Court of Appeals’ alternative holding that the EAJA’s fee-shifting provisions are precluded by § 292 of the INA, 8 U. S. C. § 1362, which provides that an individual in an administrative deportation proceeding may be represented by counsel “at no expense to the Government.” The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. ive other Courts of Appeals agree with the court below that the EAJA does not apply to administrative deportation proceedings. Hashim v. INS, 936 F. 2d 711 (CA2 1991), cert. pending, No. 91-207; Escobar v. INS, 935 F. 2d 650 (CA4 1991); Hodge v. United States Dept. of Justice, 929 F. 2d 153 (CA5 1991), cert. pending, No. 91-83; Full Gospel Portland Church v. Thornburgh, 288 U. S. App. D. C. 356, 927 F. 2d 628 (1991), cert. pending, No. 91-494; Clarke v. INS, 904 F. 2d 172 (CA3 1990); accord, Owen v. Brock, 860 F. 2d 1363 (CA6 1988) (using similar analysis to hold that Federal Employees Compensation Act benefit determinations are not covered by the EAJA). The Court of Appeals for the Ninth Circuit has determined that administrative deportation proceedings are within the scope of the EAJA. Escobar Ruiz v. INS, 838 F 2d 1020 (1988) (en banc). E. g., 6 U. S. C. § 504(a)(2) (“A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section ...”); § 504(c)(2) (“If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a) . . .”); § 504(d) (“Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise”) (emphases added).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 6 ]	sc_adminaction
ESPINOZA et vir v. FARAH MANUFACTURING CO., INC. No. 72-671. Argued October 10-11, 1973 Decided November 19, 1973 Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, Stewart, White, BlackmuN, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 96. George Cooper argued the cause for petitioners. With him on the briefs was Ruben Montemayor. Kenneth R. Carr argued the cause for respondent. With him on the brief were Jack T. Chapman and William Duncan Briefs of amici curiae urging reversal were filed by Joseph T. Eddins, Jr., and Beatrice Rosenberg for the Equal Employment Opportunity Commission; by Mario G. Obledo and Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund; and by Kenneth Hecht for the Employment Law Center. Mr. Justice Marshall delivered the opinion of the Court. This case involves interpretation of the phrase “national origin” in Tit. VII of the Civil Rights Act of 1964. Petitioner Cecilia Espinoza is a lawfully admitted resident alien who was born in and remains a citizen of Mexico. She resides in San Antonio, Texas, with her husband, Rudolfo Espinoza, a United States citizen. In July 1969, Mrs. Espinoza sought employment as a seamstress at the San Antonio division of respondent Farah Manufacturing Co. Her employment application was rejected on the basis of a longstanding company policy against the employment of aliens. After exhausting their administrative remedies with the Equal Employment Opportunity Commission, petitioners commenced this suit in the District Court alleging that respondent had discriminated against Mrs. Espinoza because of her “national origin” in violation of § 703 of Tit. VII, 78 Stat. 255, 42 U. S. C. § 2000e-2 (a)(1). The District Court granted petitioners’ motion for summary judgment, holding that a refusal to hire because of lack of citizenship constitutes discrimination on the basis of “national origin.” 343 F. Supp. 1205. The Court of Appeals reversed, concluding that the statutory phrase “national origin” did not embrace citizenship. 462 F. 2d 1331. We granted the writ to resolve this question of statutory construction, 411 U. S. 946, and now affirm. Section 703 makes it “an unlawful employment practice for an employer ... to fail or refuse to hire . . . any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Certainly the plain language of the statute supports the result reached by the Court of Appeals. The term “national origin” on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came. The statute’s legislative history; though quite meager in this respect, fully supports this construction. The only direct definition given the phrase “national origin” is the following remark made on the floor of the House of Representatives by Congressman Roosevelt, Chairman of the House Subcommittee which reported the bill: “It means the country from which you or your forebears came.' ... You may come from Poland, Czechoslovakia, England, France, or any other country.” 110 Cong. Rec. 2549 (1964). We also note that an earlier version of § 703 had referred to discrimination because of “race, color, religion, national origin, or ancestry.” H. R. 7152, 88th Cong., 1st Sess., § 804, Oct. 2, 1963 (Comm, print) (emphasis added). The deletion of the word “ancestry” from the final version was not intended as a material change, see H. R. Rep. No. 914, 88th Cong., 1st Sess., 87 (1963), suggesting that the terms “national origin” and “ancestry” were considered synonymous. There are other compelling reasons to believe that Congress did not intend the term “national origin” to embrace citizenship requirements. Since 1914, the Federal Government itself, through Civil Service Commission regulations, has engaged in what amounts to discrimination against aliens by denying them the right to enter competitive examination for federal employment. Exec. Order No. 1997, H. R. Doc. No. 1258, 63d Cong., 3d Sess., 118 (1914); see 5 U. S. C. §3301; 5 CFR § 338.101 (1972). But it has never been suggested that the citizenship requirement for federal employment constitutes discrimination because of national origin, even though since 1943, various Executive Orders have expressly prohibited discrimination on the basis of national origin in Federal Government employment. See, e. g., Exec. Order No. 9346, 3 CFR 1280 (Cum. Supp. 1938-1943); Exec. Order No. 11478, 3 CFR 446 (1970). Moreover, § 701 (b) of Tit. VII, in language closely paralleling § 703, makes it “the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of . . . national origin . . . Civil Rights Act of 1964, Pub. L. 88-352, §701 (b), 78 Stat. 254, re-enacted, Pub. L. 89-554, 80 Stat. 523, 5 U. S. C. § 7151. The legislative history of that section reveals no mention of any intent on Congress’ part to reverse the longstanding practice of requiring federal employees to be United States citizens. To the contrary, there is every indication that no such reversal was intended. Congress itself has on several occasions since 1964 enacted statutes barring aliens from federal employment. The Treasury, Postal Service, and General Government Appropriation Act, 1973, for example, provides that “no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States . . . unless such person (1) is a citizen of the United States ....” Pub. L. 92-351, § 602, 86 Stat. 487. See also Pub. L. 91-144, § 502, 83 Stat. 336 ; Pub. L. 91-439, § 502, 84 Stat. 902. To interpret the term “national origin” to embrace citizenship requirements would require us to conclude that Congress itself has repeatedly flouted its own declaration of policy. This Court cannot lightly find such a breach of faith. See Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 38 (1895). So far as federal employment is concerned, we think it plain that Congress has assumed that the ban on national-origin discrimination in § 701 (b) did not affect the historical practice of requiring citizenship as a condition of employment. See First National Bank v. Missouri, 263 U. S. 640, 658 (1924). And there is no reason to believe Congress intended the term “national origin” in § 703 to have any broader scope. Cf. King v. Smith, 392 U. S. 309, 330-331 (1968). Petitioners have suggested that the statutes and regulations discriminating against noncitizens in federal employment are unconstitutional under the Due Process Clause of the Fifth Amendment. We need not address that question here, for the issue presented in this case is not whether Congress has the power to discriminate against aliens in federal employment, but rather, whether Congress intended to prohibit such discrimination in private employment. Suffice it to say that we cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise. Interpreting § 703 as petitioners suggest would achieve the rather bizarre result of preventing Farah from insisting on United States citizenship as a condition of employment while the very agency charged with enforcement of Tit. VII would itself be required by Congress to place such a condition on its own personnel. The District Court drew primary support for its holding from an interpretative guideline issued by the Equal Employment Opportunity Commission which provides: “Because discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship . . . 29 CFR § 1606.1 (d) (1972). Like the Court of Appeals, we have no occasion here to question the general validity of this guideline insofar as it can be read as an expression of the Commission's belief that there may be many situations where discrimination on the basis of citizenship would have the effect of discriminating on the basis of national origin. In some instances, for example, a citizenship requirement might be but one part of a wider scheme of unlawful national-origin discrimination. In other cases, an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination. Certainly Tit. VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin. “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). It is equally clear, however, that these principles lend no support to petitioners in this case. There is no indication in the record that Farah’s policy against employment of aliens had the purpose or effect of discriminating against persons of Mexican national origin. It is conceded that Farah accepts employees of Mexican origin, provided the individual concerned has become an American citizen. Indeed, the District Court found that persons of Mexican ancestry make up more than 96% of the employees at the company’s San Antonio division, and 97% of those doing the work for which Mrs. Espinoza applied. While statistics such as these do not automatically shield an employer from a charge of unlawful discrimination, the plain fact of the matter is that Farah does not discriminate against persons of Mexican national origin with respect to employment in the Job Mrs. Espinoza sought. She was denied employment, not because of the country of her origin, but because she had not yet achieved United States citizenship. In fact, the record shows that the worker hired in place of Mrs. Espinoza was a citizen with a Spanish surname. The Commission’s guideline may have significance for a wide range of situations, but not for a case such as this where its very premise — that discrimination on the basis of citizenship has the effect of discrimination on the basis of national origin — is not borne out. It is also significant to note that the Commission itself once held a different view as to the meaning of the phrase “national origin.” When first confronted with the dues-' tion, the Commission, through its General Counsel, said: “ ‘National origin’ refers to the country from which the individual or his forebears came . . . , not to whether or not he is a United States citizen . . . EEOC General Counsel’s Opinion Letter, 1 CCH Employment Prac. Guide ¶ 1220.20 (1967) . The Commission’s more recent interpretation of the statute in the guideline relied on by the District Court is no doubt entitled to great deference, Griggs v. Duke Power Co., supra, at 434; Phillips v. Martin Marietta Corp., 400 U. S. 542, 545 (1971) (Marshall, J., concurring), but that deference must have limits where, as here, application of the guideline would be inconsistent with an obvious congressional intent not to reach the employment practice in question. Courts need not defer to an administrative construction of a statute where there are “compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969); see also Zuber v. Allen, 396 U. S. 168, 193 (1969); Volkswagenwerk Aktiengesellschaft v. FMC, 390 U. S. 261, 272 (1968). Finally, petitioners seek to draw support from the fact that Tit. YII protects all individuals from unlawful discrimination, whether or not they are citizens of the United States. We agree that aliens are protected from discrimination under the Act. That result may be derived not only from the use of the term “any individual” in § 703, but also as a negative inference from' the exemption in § 702, which provides that Tit. VII “shall not apply to an employer with respect to the employment of aliens outside any State . . . 42 U. S. C. § 2000e-l. Title VII was clearly intended to apply with respect to the employment of aliens inside any State. The question posed in the present case, however, is not whether aliens are protected from illegal discrimination under the Act, but what kinds of discrimination the Act makes illegal. Certainly it would be unlawful for an employer to discriminate against aliens because of race, color, religion,, sex, or national origin — for example, by hiring aliens of Anglo-Saxon background but refusing to hire those of Mexican or Spanish ancestry. Aliens are protected from illegal discrimination under the Act, but nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage. We agree with the Court of Appeals that neither the language of the Act, nor its history, nor the specific facts of this case indicate that respondent has engaged in unlawful discrimination because of national origin. Affirmed. Section 706 (e), 42 U. S. C. §2000e-5 (e). See, e. g., Minnesota State Act Against Discrimination, Minn. Stat. § 363.01, subd. 6 (1971), defining “national origin” as “the place of birth of an individual or of any of his lineal ancestors.” Several States have statutes making it illegal to discriminate on the basis of national origin, and many of these statutes have apparently been interpreted by the appropriate state enforcement agency as not barring citizenship requirements. For example, the New York Human Rights Law provides that it is an unlawful discriminatory practice to refuse to hire any individual because of his or her origin and additionally provides that it shall be unlawful for an employer to make any pre-employment inquiry “which expresses directly or indirectly, any limitation, specification or discrimination as to . . . national origin . . . .” N. Y. Exec. Law §296 (1972). The New York State Commission Against Discrimination has ruled that an employer may lawfully ask a job applicant whether he or she is a citizen of the United States. See 3 CCH Employment Prac. Guide ¶ 26,051, p. 8899. While these interpretations of state statutes do not control our construction of federal law, we think them indicative of a general understanding that the term “national origin” does not embrace a requirement of United States citizenship. Petitioners argue that it is unreasonable to attribute any great significance to these provisions in determining congressional intent because the barrier to employment of noncitizens has been tucked away in appropriations bills rather than expressed in a more affirmative fashion. We disagree. Indeed, the fact that Congress has occasionally enacted exceptions to the general barrier indicates to us that Congress was well aware of what it was doing. See, e. g., Pub. L. 92-204, §703, 85 Stat. 726 (Dept. of Defense); Pub. L. 91-382, 84 Stat. 823 (Library of Congress). We left this question undecided in Sugarman v. Dougall, 413 U. S. 634, 646 n. 12 (1973). See Jalil v. Hampton, 148 U. S. App. D. C. 415, 460 F. 2d 923, cert. denied, 409 U. S. 887 (1972); Mow Sun Wong v. Hampton, 333 F. Supp. 527 (ND Cal. 1971). There is no suggestion, for example, that the company refused to hire aliens of Mexican or Spanish-speaking background while hiring those of other national origins. Respondent’s president informed the EEOC’s Regional Director investigating the charge that once in its history the company had made a single exception to its policy against hiring aliens, but the nationality of the individual concerned is not revealed in the record. While the company asks job applicants whether they are United States citizens, it makes no inquiry as to their national origin. It is suggested that a refusal to hire an alien always disadvantages that person because of the country of his birth. A person born in the United States, the argument goes, automatically obtains citizenship at birth, while those born elsewhere can acquire citizenship only through a long and sometimes difficult process. See 8 U. S. C. §§ 1423 (1), 1423 (2), 1427 (a), and 1430. The answer to this argument is that it is not the employer who places the burdens of naturalization on those bom outside the country, but Congress itself, through laws enacted pursuant to its constitutional power “[t]o establish an uniform Rule of Naturalization.” U. S. Const., Art. 1, § 8, cl. 4. Petitioners' reliance on Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971), is misplaced for similar reasons. In Phillips we held it unlawful under § 703 to have “one hiring policy for women and another for men . . . .” Id., at 544. Farah, however, does not have a different policy for the foreign born than for those born in the United States. It requires of all that they be citizens of the United States. The Opinion Letter was addressed to the question whether it was lawful to discriminate against nonresident aliens in favor of citizens and resident aliens, and expressly reserved any decision “regarding discrimination in favor of United States citizens and against resident aliens.” Nevertheless, the definition of “national origin” set forth in the Letter is inconsistent with that suggested by petitioners here. Petitioners argue that respondent’s policy of discriminating against aliens is prohibited by.42 U. S. C. § 1981, which provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . This issue was neither raised before the courts below nor presented in the petition for a writ of certiorari. Accordingly we express no views thereon. “Title VII of the Civil Rights Act of 1964 protects all individuals, both citizens and noncitizens, domiciled or residing in the United States, against discrimination on the basis of race, color, religion, sex, or national origin.” 29 CFR § 1606.1 (c) (1972).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
GALVAN v. PRESS, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION SERVICE. No. 407. Argued January 11-12, 1954. Decided May 24, 1954. Harry Wolpin and A. L. Wirin argued the cause for petitioner. With them on the brief were Morris L. Ernst and Osmond K. Fraenkel. Oscar H. Davis argued the cause for respondent. With him on the brief were Robert L. Stern, then Acting Solicitor General, Assistant Attorney General Olney and Beatrice Rosenberg. Mr. Justice Frankfurter delivered the opinion of the Court. Petitioner, an alien of Mexican birth, first entered the United States in 1918 and has since resided here with only-occasional brief visits to his native country. In the course of two questionings, in March 1948, by the Immigration and Naturalization Service, he indicated that he had been a member of the Communist Party from 1944 to 1946. In March of 1949, the petitioner was served with a deportation warrant, and on the same day a preliminary deportation hearing was held to acquaint him with the charges against him — that after entry he had become a member of an organization which advocated the violent overthrow of the United States Government, and of an organization which distributed material so advocating. In December 1950, petitioner had a de novo hearing at which the transcripts of all earlier proceedings were, by agreement, made part of the record. Shortly after the hearing commenced, the Examining Officer lodged the additional charge against the petitioner that after entry he had been a member of the Communist Party, membership in which had been made a specific ground for deportation by the Internal Security Act of 1950, 64 Stat. 987, 1006, 1008. At this final hearing the evidence against the petitioner was derived from two principal sources. The first was his own testimony during the two interrogations by immigration authorities in 1948. During those interrogations, he had testified as to the time and place he had joined the Communist Party, talked freely about his membership in the Party, and indicated generally that the distinction between the Party and other groups was clear in his mind; he had explained that the reason he had not applied for naturalization was that he feared his former Party membership might be revealed, and had offered to make amends by rejoining the Party as an undercover agent for the Government. At the hearing in December of 1950, petitioner denied that in his prior hearing he had admitted joining the Party, insisting that at the time he thought the question related to labor union activities. In response to a question whether he had ever attended meetings of the Spanish Speaking Club, an alleged Communist Party unit, he replied: “The only meetings I attended were relating to the Fair Employment Practices Committee.” The second source of information was the testimony of a Mrs. Meza to the effect that she had been present when petitioner was elected an officer of the Spanish Speaking Club. Petitioner denied the truth of this and other statements of Mrs. Meza calculated to establish his active participation in the Communist Party and said: “She must have been under great strain to imagine all those things.” The Hearing Officer found that petitioner had been a member of the Communist Party from 1944 to 1946 and ordered him deported on that specific ground. He did not deem it necessary to make findings on the more general charges contained in the original warrant. The Hearing Officer’s decision was adopted by the Assistant Commissioner and an appeal was dismissed by the Board of Immigration Appeals. A petition for a writ of habeas corpus was denied by the District Court, and the dismissal was affirmed by the Court of Appeals for the Ninth Circuit. 201 F. 2d 302. On certiorari, petitioner challenged the sufficiency of thé evidence to sustain deportation under § 22 of the Internal Security Act of 1950 and attacked the validity of the Act as applied to him. These are issues that raise the constitutionality and construction of the 1950 Act for the first time and so we granted certiorari. 346 U. S. 812. Petitioner’s contention that there was not sufficient evidence to support the deportation order brings into question the scope of the word “member” as used by Congress in the enactment of 1950, whereby it required deportation of any alien who at the time of entering the United States, or at any time thereafter, was a “member” of the Communist Party. We are urged to construe the Act as providing for the deportation only of those aliens who joined the Communist Party fully conscious of its advocacy of violence, and who, by so joining, thereby committed themselves to this violent purpose. But the Act itself appears to preclude an interpretation which would require proof that an alien had joined the Communist Party with full appreciation of its purposes and program. In the same section under which the petitioner’s deportation is sought here as a former Communist Party member, there is another provision, subsection (2)(E), which requires the exclusion or deportation of aliens who are “members of or affiliated with” an organization required to register under the Internal Security Act of 1950, “unless such aliens establish that they did not know or have reason to believe at the time they became members of or affiliated with such an organization . . . that such organization was a Communist organization.” 64 Stat. 1007. In describing the purpose of this clause, Senator McCarran, the Act’s sponsor, said: “Aliens who were innocent dupes when they joined a Communist-front organization, as distinguished from a Communist political organization [such as the Communist Party], would likewise not ipso facto be excluded or deported.” 96 Cong. Rec. 14180. In view of this specific escape provision for members of other organizations, it seems clear that Congress did not exempt “innocent” members of the Communist Party. While the legislative history of the 1950 Act is not illuminating on the scope of “member,” considerable light was shed by authoritative comment in the debates on the statute which Congress enacted in 1951 to correct what it regarded as the unduly expanded interpretation by the Attorney General of “member” under the 1950 Act. 65 Stat. 28. The amendatory statute dealt with certain specific situations which had been brought to the attention of Congress and provided that where aliens had joined a proscribed organization (1) when they were children, (2) by operation of law, or (3) to obtain the necessities of life, they were not to be deemed to have been “members.” In explaining the measure, its sponsor, Senator McCarran, stated repeatedly and emphatically that “member” was intended to have the same meaning in the 1950 Act as had been given it by the courts and administrative agencies since 1918, 97 Cong. Rec. 2368-2374. See S. Rep. No. 111, 82d Cong., 1st Sess. 2; H. R. Rep. No. 118, 82d Cong., 1st Sess. 2. To illustrate what “member” did not cover he inserted in the Record -a memorandum containing the following language quoted from Colyer v. Skeffington, 265 F. 17, 72: “Congress could not have intended to authorize the wholesale deportation of aliens who, accidentally, artificially, or unconsciously in appearance only, are found to be members of or affiliated with an organization of whose platform and purposes they have no real knowledge.” 97 Cong. Rec. 2373. This memorandum, as a weighty gloss on what Congress wrote, indicates that Congress did not provide that the three types of situations it enumerated in the 1951 corrective statute should be the only instances where membership is so nominal as to keep an alien out of the deportable class. For example, the circumstances under which the finding of membership was rejected in Colyer v. Skeffington, supra, would not have been covered by the specific language in the 1951 Act. In that case, the aliens passed “from one organization into another, supposing the change to be a mere change of name, and that by assenting to membership in the new organization they had not really changed their affiliations or political or economic activities.” 265 F., at 72. On the other hand, the repeated statements that “member” was to have the same meaning under the 1950 Act as previously, preclude an interpretation limited to those who were fully cognizant of the Party’s advocacy of violence. For the judicial and administrative decisions prior to 1950 do not exempt aliens who joined an organization unaware of its program and purposes. See Kjar v. Doak, 61 F. 2d 566; Greco v. Haff, 63 F. 2d 863; In the Matter of O — , 3 I. & N. Dec. 736. It must be concluded, therefore, that support, or even demonstrated knowledge, of the Communist Party’s advocacy of violence was not intended to be a prerequisite to deportation. It is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization, and that he did so of his own free will. A fair reading of the legislation requires that this scope be given to what Congress enacted in 1950, however severe the consequences and whatever view one may have of the wisdom of the means which Congress employed to meet its desired end. On this basis, the Hearing Officer’s finding that petitioner here was a “member” of the Communist Party must be sustained. Petitioner does not claim that he joined the Party “accidentally, artificially, or unconsciously in appearance only,” to use the words in Senator McCarran’s memorandum. The two points on which he bases his defense against the deportation order are, first, that he did not join the Party at all, and that if he did join, he was unaware of the Party’s true purposes and program. The evidence which must have been believed and relied upon for the Hearing Officer’s finding that petitioner was a “member” is that petitioner was asked to join the Party by a man he assumed to be an organizer, that he attended a number of meetings and that he did not apply for citizenship because he feared his Party membership would become known to the authorities. In addition, on the basis of Mrs. Meza’s testimony, the Hearing Officer was entitled to conclude that petitioner had been active in the Spanish Speaking Club, and, indeed, one of its officers. Certainly there was sufficient evidence to support a finding of membership. And even if petitioner was unaware of the Party’s advocacy of violence, as he attempted to prove, the record does not show a relationship to the Party so nominal as not to make him a “member” within the terms of the Act. This brings us to petitioner’s constitutional attack on the statute. Harisiades v. Shaughnessy, 342 U. S. 580, sustained the constitutionality of the Alien Registration Act of 1940. 54 Stat. 670. That Act made membership in an organization which advocates the overthrow of the Government of the United States by force or violence a ground for deportation, notwithstanding that membership in such organization had terminated before enactment of the statute. Under the 1940 Act, it was necessary to prove in each case, where membership in the Communist Party was made the basis of deportation, that the Party did, in fact, advocate the violent overthrow of the Government. The Internal Security Act of 1950 dispensed with the need for such proof. On the basis of extensive investigation Congress made many findings, including that in § 2 (1) of the Act that the “Communist movement ... is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship,” and made present or former membership in the Communist Party, in and of itself, a ground for deportation. Certainly, we cannot say that this classification by Congress is so baseless as to be violative of due process and therefore beyond the power of Congress. In this respect — the dispensation with proof of the character of the Communist Party — the present case goes beyond Harisiades. But insofar as petitioner’s constitutional claim is based on his ignorance that the Party was committed to violence, the same issue was before the Court with respect to at least one of the aliens in Harisiades. The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security. Nevertheless, considering what it means to deport an alien who legally became part of the American community, and the extent to which, since he is a “person,” an alien has the same protection for his life, liberty and property under the Due Process Clause as is afforded to a citizen, deportation without permitting the alien to prove that he was unaware of the Communist Party’s advocacy of violence strikes one with a sense of harsh incongruity. If due process bars Congress from enactments that shock the sense of fair play — which is the essence of due process — one is entitled to ask whether it is not beyond the power of Congress to deport an alien who was duped into joining the Communist Party, particularly when his conduct antedated the enactment of the legislation under which his deportation is sought. And this because deportation may, as this Court has said in Ng Fung Ho v. White, 259 U. S. 276, 284, deprive a man “of all that makes life worth living”; and, as it has said in Fong Haw Tan v. Phelan, 333 U. S. 6, 10, “deportation is a drastic measure and at times the equivalent of banishment or exile.” In light of the expansion of the concept of substantive due process as a limitation upon all powers of Congress, even the war power, see Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 155, much could be said for the view, were we writing on a clean slate, that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. And since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation. But the slate is not clean. As to the extent of the power of Congress under review, there is not merely “a page of history,” New York Trust Co. v. Eisner, 256 U. S. 345, 349, but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. The Japanese Immigrant Case, 189 U. S. 86, 101; Wong Yang Sung v. McGrath, 339 U. S. 33, 49. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation. We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens, on the basis of which we are unable to find the Act of 1950 unconstitutional. See Bugajewitz v. Adams, 228 U. S. 585, and Ng Fung Ho v. White, 259 U. S. 276, 280. Judgment affirmed. In his petition, petitioner also contended that- the procedure used against him was unfair because of the new charge lodged by the Examining Officer in the December 1950 hearing. Apart from the fact that this claim was not pressed in the argument or petitioner’s brief, it is sufficient to note that there was no element of surprise in the additional charge, since it was simply in more specific terms the same ground for deportation that petitioner already knew he had to defend against, namely, membership in the Communist Party. Furthermore, petitioner declined the Hearing Officer’s offer of a continuance to meet the new charge. Section 22 of the Internal Security Act of 1950 provides that the Attorney General shall take into custody and deport any alien “who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act . . . .” Subparagraph (C) of § 1 (2) lists “Aliens who are members of or affiliated with (i) the Communist Party of the United States . . . .” The substance of this provision was incorporated in the Immigration and Nationality Act of 1952, 66 Stat. 163, 205, 8 U. S. C. § 1251 (a)(6)(C). Under § 7 of the Internal Security Act of 1950, “Communist-action” and “Communist-front” organizations are required to register as such with the Attorney General. Section 13 provides that where such an organization fails to register the Attorney General may institute proceedings requiring such registration. First in' Ogden v. Saunders, 12 Wheat. 213, 271, and again in Satterlee v. Matthewson, 2 Pet. 380, 681 (appendix), a characteristically persuasive attack was made by Mr. Justice Johnson on the view that the ex post facto Clause applies only to prosecutions for crime. The Court, however, has undeviatingly enforced the contrary position, first expressed in Calder v. Bull, 3 Dall. 386. It would be an unjustifiable reversal to overturn a view of the Constitution so deeply rooted and so consistently adhered to.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 67 ]	sc_adminaction
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, DEPARTMENT OF LABOR v. GREENWICH COLLIERIES et al. No. 93-744. Argued April 25, 1994 Decided June 20, 1994 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Thomas, and Ginsburg, JJ., joined. Souter, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined, post, p. 281. Edward C. DuMont argued the cause for petitioner in both cases. With him on the briefs were Solicitor General Days, Deputy Solicitor General Kneedler, Steven J. Mandel, and Edward D. Sieger. Mark E. Solomons argued the cause for respondents in both cases. With him on the brief for respondent Greenwich Collieries were Laura Metcojf Klaus and John J. Bagnato. Joseph T. Stearns filed a brief for respondent Maher Terminals, Inc. Philip J. Rooney filed a brief for respondent Pasqualina Santoro. Together with Director, Office of Workers’ Compensation Programs, Department of Labor v. Maher Terminals, Inc., et al., also on certiorari to the same court (see this Court’s Rule 12.2). Briefs of amici curiae urging affirmance were filed for the American Insurance Association by William J. Kilberg, Theodore J. Boutrous, Jr., Craig A Berrington, and Bruce C. Wood; for the National Association of Waterfront Employers et al. by Charles T. Carroll, Jr., Thomas D. Wilcox, and Franklin W. Losey; and for the National Coal Association by Harold P. Quinn, Jr. Justice O’Connor delivered the opinion of the Court. In adjudicating benefits claims under the Black Lung Benefits Act (BLBA), 83 Stat. 792, as amended, 30 U. S. C. § 901 et seq. (1988 ed. and Supp. IV), and the Longshore and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., the Department of Labor applies what it calls the “true doubt” rule. This rule essentially shifts the burden of persuasion to the party opposing the benefits claim — when the evidence is evenly balanced, the benefits claimant wins. This litigation presents the question whether the rule is consistent with § 7(c) of the Administrative Procedure Act (APA), which states that “[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.” 5 U. S. C. § 556(d). I We review two separate decisions of the Court of Appeals for the Third Circuit. In one, Andrew Ondecko applied for disability benefits under the BLBA after working as a coal miner for 31 years. The Administrative Law Judge (ALJ) determined that Ondecko had pneumoconiosis (or black lung disease), that he was totally disabled by the disease, and that the disease resulted from coal mine employment. In resolving the first two issues, the ALJ relied on the true doubt rule. In resolving the third, she relied on the rebuttable presumption that a miner with pneumoconiosis who worked in the mines for at least 10 years developed the disease because of his employment. 20 CFR § 718.203(b) (1993). The Department’s Benefits Review Board affirmed, concluding that the ALJ had considered all the evidence, had found each side’s evidence to be equally probative, and had properly resolved the dispute in Ondecko’s favor under the true doubt rule. The Court of Appeals vacated the Board’s decision, holding that the true doubt rule is inconsistent with the Department’s own regulations under the BLBA, §718.403, as well as with Mullins Coal Co. of Va. v. Director, Office of Workers’ Compensation Programs, 484 U. S. 135 (1987). 990 F. 2d 730 (1993). In the other case, Michael Santoro suffered a work-related back and neck injury while employed by respondent Maher Terminals. Within a few months Santoro was diagnosed with nerve cancer, and he died shortly thereafter. His widow filed a claim under the LHWCA alleging that the work injury had rendered her husband disabled and caused his death. After reviewing the evidence for both sides, the ALJ found it equally probative and, relying on the true doubt rule, awarded benefits to the claimant. The Board affirmed, finding no error in the ALJ’s analysis or his application of the true doubt rule. The Court of Appeals reversed, holding that the true doubt rule is inconsistent with §7(c) of the APA. 992 F. 2d 1277 (1993). In so holding, the court expressly disagreed with Freeman United Coal Mining Co. v. Office of Workers’ Compensation Programs, 988 F. 2d 706 (CA7 1993). We granted certiorari to resolve the conflict. 510 U. S. 1068 (1994). II As a threshold matter, we must decide whether § 7(c)’s burden of proof provision applies to adjudications under the LHWCA and the BLBA. Section 7(c) of the APA applies “[ejxcept as otherwise provided by statute,” and the Department argues that the statutes at issue here make clear that § 7(c) does not apply. We disagree. The Department points out that in conducting investigations or hearings pursuant to the LHWCA, the “Board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter.” 33 U. S. C. § 923(a). But the assignment of the burden of proof is a rule of substantive law, American Dredging Co. v. Miller, 510 U. S. 443, 454 (1994), so it is unclear whether this exception even applies. More importantly, §923 by its terms applies “except as provided by this chapter,” and the chapter provides that §7(c) does indeed apply to the LHWCA. 33 U. S. C. § 919(d) (“Notwithstanding any other provisions of this chapter, any hearing held under this chapter shall be conducted in accordance with [the APA]”); 5 U. S. C. § 554(c)(2). We do not lightly presume exemptions to the APA, Brownell v. Tom We Shung, 352 U. S. 180, 185 (1956), and we do not think § 923 by its terms exempts the LHWCA from § 7(c). The Department’s argument under the BLBA fares no better. The BLBA also incorporates the APA (by incorporating parts of the LHWCA), but it does so “except as otherwise provided... by regulations of the Secretary.” 30 U. S. C. § 932(a). The Department argues that the following BLBA regulation so provides: “In enacting [the BLBA], Congress intended that claimants be given the benefit of all reasonable doubt as to the existence of total or partial disability or death due to pneumoconiosis.” 20 CFR § 718.3(c) (1993). But we do not think this regulation can fairly be read as authorizing the true doubt rule and rejecting the APA’s burden of proof provision. Not only does the regulation fail to mention the true doubt rule or §7(c), it does not even mention the concept of burden shifting or burdens of proof. Accordingly — and assuming, arguendo, that the Department has the authority to displace § 7(c) through regulation — this ambiguous regulation does not overcome the presumption that these adjudications under the BLBA are subject to § 7(c)’s burden of proof provision. III We turn now to the meaning of “burden of proof” as used in §7(c). Respondents contend that the Court of Appeals was correct in reading “burden of proof” to include the burden of persuasion. The Department disagrees, contending that “burden of proof” imposes only the burden of production (i. e., the burden of going forward with evidence). The cases turn on this dispute, for if respondents are correct, the true doubt rule must fall: because the true doubt rule places the burden of persuasion on the party opposing the benefits award, it would violate § 7(c)’s requirement that the burden of persuasion rest with the party seeking the award. A Because the term “burden of proof” is nowhere defined in the APA, our task is to construe it in accord with its ordinary or natural meaning. Smith v. United States, 508 U. S. 223, 228 (1993). It is easier to state this task than to accomplish it, for the meaning of words may change over time, and many words have several meanings even at a fixed point in time. Victor v. Nebraska, 511 U. S. 1, 13-14 (1994); see generally Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561 (1994). Here we must seek to ascertain the ordinary meaning of “burden of proof” in 1946, the year the APA was enacted. For many years the term “burden of proof” was ambiguous because the term was used to describe two distinct concepts. Burden of proof was frequently used to refer to what we now call the burden of persuasion — the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose. But it was also used to refer to what we now call the burden of production — a party’s obligation to come forward with evidence to support its claim. See J. Thayer, Evidence at the Common Law 355-384 (1898) (detailing various uses of the term “burden of proof” among 19th-century English and American courts). The Supreme Judicial Court of Massachusetts was the leading proponent of the view that burden of proof should be limited to burden of persuasion. In what became an oft-cited case, Chief Justice Lemuel Shaw attempted to distinguish the burden of proof from the burden of producing evidence. Powers v. Russell, 30 Mass. 69 (1833). According to the Massachusetts court, “the party whose case requires the proof of [a] fact, has all along the burden of proof.” Id., at 76. Though the burden of proving the fact remains where it started, once the party with this burden establishes a prima facie ease, the burden to “produce evidence” shifts. Ibid. The only time the burden of proof — as opposed to the burden to produce evidence — might shift is in the case of affirmative defenses. Id., at 77. In the century after Powers, the Supreme Judicial Court of Massachusetts continued to carefully distinguish between the burden of proof and the burden of production. See, e. g., Smith v. Hill, 232 Mass. 188, 122 N. E. 310 (1919). Despite the efforts of the Massachusetts court, the dual use of the term continued throughout the late 19th and early 20th centuries. See 4 J. Wigmore, Evidence §§2486-2487, pp. 3524-3529 (1905); Thayer, supra, at 355; 1 B. Elliott & W. Elliott, Law of Evidence § 129, pp. 184-185 (1904); 2 C. Chamberlayne, Modern Law of Evidence § 936, pp. 1096-1098 (1911). The ambiguity confounded the treatise writers, who despaired over the “lamentable ambiguity of phrase and confusion of terminology under which our law has so long suffered.” Wigmore, supra, at 3521-3522. The writers praised the “clear-thinking” efforts of courts like the Supreme Judicial Court of Massachusetts, Chamberlayne, supra, at 1097, n. 3, and agreed that the legal profession should endeavor to clarify one of its most basic terms. According to Thayer, supra, at 384-385, “[i]t seems impossible to approve a continuance of the present state of things, under which such different ideas, of great practical importance and of frequent application, are indicated by this single ambigúous expression.” See also Chamberlayne, supra, at 1098. To remedy this problem, writers suggested that the term “burden of proof” be limited to the concept of burden of persuasion, while some other term — such as “burden of proceeding” or “burden of evidence” — be used to refer to the concept of burden of production. Chamberlayne, supra, § 936; Elliott & Elliott, supra, at 185, n. 3. Despite the efforts at clarification, however, a dwindling number of courts continued to obscure the distinction. See Annot., 2 A. L. R. 1672 (1919) (noting that some courts still fail to properly distinguish “between the burden of proof and the duty of going forward with the evidence”). This Court tried to eliminate the ambiguity in the term “burden of proof” when it adopted the Massachusetts approach. Hill v. Smith, 260 U. S. 592 (1923). Justice Holmes wrote for a unanimous Court that “it will not be necessary to repeat the distinction, familiar in Massachusetts since the time of Chief Justice Shaw, [Powers, supra], and elaborated in the opinion below, between the burden of proof and the necessity of producing evidence to meet that already produced. The distinction is now very generally accepted, although often blurred by careless speech.” Id., at 594. In the two decades after Hill, our opinions consistently distinguished between burden of proof, which we defined as burden of persuasion, and an alternative concept, which we increasingly referred to as the burden of production or the burden of going forward with the evidence. See, e. g., Brosnan v. Brosnan, 263 U. S. 345, 349 (1923) (imposition of burden of proof imposes the burden of persuasion, not simply the burden of establishing a prima facie case); Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U. S. 1, 7-8 (1934) (party who bears the burden of proof “bears a heavy burden of persuasion”); Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U. S. 104, 111 (1941) (party with the burden of proof bears the “burden of persuasion,” though the opposing party may bear a burden to “go forward with evidence”); Webre Steib Co. v. Commissioner, 324 U. S. 164, 171 (1945) (claimant bears a “burden of going forward with evidence... as well as the burden of proof”) (emphasis added). During this period the Courts of Appeals also limited the meaning of burden of proof to burden of persuasion, and explicitly distinguished this concept from the burden of production. The emerging consensus on a definition of burden of proof was reflected in the evidence treatises of the 1930’s and 1940’s. “The burden of proof is the obligation which rests on one of the parties to an action to persuade the trier of the facts, generally the jury, of the truth of a proposition which he has affirmatively asserted by the pleadings.” W. Richardson, Evidence 143 (6th ed. 1944); see also 1 B. Jones, Law of Evidence in Civil Cases 310 (4th ed. 1938) (“The modern authorities are substantially agreed that, in its strict primary sense, ‘burden of proof’ signifies the duty or obligation of establishing, in the mind of the trier of facts, conviction on the ultimate issue”); J. McKelvey, Evidence 64 (4th ed. 1932) (“[T]he proper meaning of [burden of proof]” is “the duty of the person alleging the case to prove it,” rather than “the duty of the one party or the other to introduce evidence”). We interpret Congress’ use of the term “burden of proof” in light of this history, and presume Congress intended the phrase to have the meaning generally accepted in the legal community at the time of enactment. Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992); Miles v. Apex Marine Corp., 498 U. S. 19, 32 (1990); Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979). These principles lead us to conclude that the drafters of the APA used the term “burden of proof” to mean the burden of persuasion. As we have explained, though the term had once been ambiguous, that ambiguity had largely been eliminated by the early 20th century. After Hill, courts and commentators almost unanimously agreed that the definition was settled. And Congress indicated that it shared this settled understanding, when in the Communications Act of 1934 it explicitly distinguished between the burden of proof and the burden of production. 47 U. S. C. §§ 309(e) and 312(d) (a party has both the “burden of proceeding with the introduction of evidence and the burden of proof”). Accordingly, we conclude that as of 1946 the ordinary meaning of burden of proof was burden of persuasion, and we understand the APA’s unadorned reference to “burden of proof” to refer to the burden of persuasion. B We recognize that we have previously asserted the contrary conclusion as to the meaning of burden of proof in § 7(c) of the APA. In NLRB v. Transportation Management Corp., 462 U. S. 393 (1983), we reviewed the National Labor Relations Board’s (NLRB’s) conclusion that the employer had discharged the employee because of the employee’s protected union activity. In such cases the NLRB employed a burden shifting formula typical in dual motive cases: The employee had the burden of persuading the NLRB that antiunion animus contributed to the employer’s firing decision; the burden then shifted to the employer to establish as an affirmative defense that it would have fired the employee for permissible reasons even if the employee had not been involved in union activity. Id., at 401-402. The employer claimed that the NLRB’s burden shifting formula was inconsistent with the National Labor Relations Act (NLRA), but we upheld it as a reasonable construction of the NLRA. Id., at 402-403. The employer in Transportation Management argued that the NLRB’s approach violated § 7(c)’s burden of proof provision, which the employer read as imposing the burden of persuasion on the employee. In a footnote, we summarily rejected this argument, concluding that “[§ 7(c)]... determines only the burden of going forward, not the burden of persuasion. Environmental Defense Fund, Inc. v. EPA, [548 F. 2d 998, 1004, 1013-1015 (CADC 1976)].” Id., at 404, n. 7. In light of our discussion in Part II-A above, we do not think our cursory conclusion in the Transportation Management footnote withstands scrutiny. The central issue in Transportation Management was whether the NLRB’s burden shifting approach was consistent with the NLRA. The parties and the amici in Transportation Management treated the APA argument as an afterthought, devoting only one or two sentences to the question. None of the briefs in the case attempted to explain the ordinary meaning of the term. Transportation Management’s cursory answer to an ancillary and largely unbriefed question does not warrant the same level of deference we typically give our precedents. Moreover, Transportation Management reached its conclusion without referring to Steadman v. SEC, 450 U. S. 91 (1981), our principal decision interpreting the meaning of § 7(c). In Steadman we considered what standard of proof §7(c) required, and we held that the proponent of a rule or order under § 7(c) had to meet its burden by a preponderance of the evidence, not by clear and convincing evidence. Though we did not explicitly state that §7(c) imposes the burden of persuasion on the party seeking the rule or order, our reasoning strongly implied that this must be so. We assumed that burden of proof meant burden of persuasion when we said that we had to decide “the degree of proof which must be adduced by the proponent of a rule or order to carry its burden of persuasion in an administrative proceeding.” Id., at 95 (emphasis added). More important, our holding that the party with the burden of proof must prove its case by a preponderance only makes sense if the burden of proof means the burden of persuasion. A standard of proof, such as preponderance of the evidence, can apply only to a burden of persuasion, not to a burden of production. We do not slight the importance of adhering to precedent, particularly in a case involving statutory interpretation. But here our precedents are in tension, and we think our approach in Steadman makes more sense than does the Transportation Management footnote. And although we reject Transportation Managements reading of §7(c), the holding in that case remains intact. The NLRB’s approach in Transportation Management is consistent with § 7(c) because the NLRB first required the employee to persuade it that antiunion sentiment contributed to the employer’s decision. Only then did the NLRB place the burden of persuasion on the employer as to its affirmative defense. C In addition to the Transportation Management footnote, the Department relies on the Senate and House Judiciary Committee Reports on the APA to support its claim that burden of proof means only burden of production. See Environmental Defense Fund v. EPA, 548 F. 2d, at 1014-1015 (accepting this argument), cited in Transportation Management, supra, at 404, n. 7. We find this legislative history unavailing. The Senate Judiciary Committee Report on the APA states as follows: “That the proponent of a rule or order has the burden of proof means not only that the party initiating the proceeding has the general burden of coming forward with a prima facie case but that other parties, who are proponents of some different result, also for that purpose have a burden to maintain. Similarly the requirement that no sanction be imposed or rule or order be issued except upon evidence of the kind specified means that the proponents of a denial of relief must sustain such denial by that kind of evidence. For example, credible and credited evidence submitted by the applicant for a license may not be ignored except upon the requisite kind and quality of contrary evidence. No agency is authorized to stand mute and arbitrarily disbelieve credible evidence. Except as applicants for a license or other privilege may be required to come forward with a prima facie showing, no agency is entitled to presume that the conduct of any person or status of any enterprise is unlawful or improper.” S. Rep. No. 752,79th Cong., 1st Sess., 22 (1945). The House Judiciary Committee Report contains identical language, along with the following: “In other words, this section means that every proponent of a rule or order or the denial thereof has the burden of coming forward with sufficient evidence therefor; and in determining applications for licenses or other relief any fact, conduct, or status so shown by credible and credited evidence must be accepted as true except as the contrary has been shown or such evidence has been rebutted or impeached by duly credited evidence or by facts officially noticed and stated.” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 36 (1946). The Department argues that this legislative history indicates congressional intent to impose a burden of production on the proponent. But even if that is so, it does not mean that § 7(c) is concerned only with imposing a burden of production. That Congress intended to impose a burden of production does not mean that Congress did not also intend to impose a burden of persuasion. Moreover, these passages are subject to a natural interpretation compatible with congressional intent to impose a burden of persuasion on the party seeking an order. The primary purpose of these passages is not to define or allocate the burden of proof. The quoted passages are primarily concerned with the burden placed on the opponent in administrative hearings (“other parties... have a burden to maintain”), particularly where the opponent is the Government. The Committee appeared concerned with those cases in which the “proponent” seeks a license or other privilege from the Government, and in such cases did not want to allow the agency “to stand mute and arbitrarily disbelieve credible evidence.” The Reports make clear that once the licensee establishes a prima facie case, the burden shifts to the Government to rebut it. This is perfectly compatible with a rule placing the burden of persuasion on the applicant, because when the party with the burden of persuasion establishes a prima facie case supported by “credible and credited evidence,” it must either be rebutted or accepted as true. The legislative history the Department relies on is imprecise and only marginally relevant. Congress chose to use the term “burden of proof” in the text of the statute, and given the substantial evidence that the ordinary meaning of burden of proof was burden of persuasion, this legislative history cannot carry the day. D In part due to Congress’ recognition that claims such as those involved here would be difficult to prove, claimants in adjudications under these statutes benefit from certain statutory presumptions easing their burden. See 33 U. S. C. § 920; 30 U. S. C. § 921(c); Del Vecchio v. Bowers, 296 U. S. 280, 286 (1935). Similarly, the Department’s solicitude for benefits claimants is reflected in the regulations adopting additional presumptions. See 20 CFR §§718.301-718.306 (1993); Mullins Coal, 484 U. S., at 158. But with the true doubt rule the Department attempts to go one step further. In so doing, it runs afoul of the APA, a statute designed “to introduce greater uniformity of procedure and standardization of administrative practice among the diverse agencies whose customs had departed widely from each other.” Wong Yang Sung v. McGrath, 339 U. S. 33, 41 (1950). That concern is directly implicated here, for under the Department’s reading each agency would be free to decide who shall bear the burden of persuasion. Accordingly, the Department cannot allocate the burden of persuasion in a manner that conflicts with the APA. IV Under the Department’s true doubt rule, when the evidence is evenly balanced the claimant wins. Under §7(c), however, when the evidence is evenly balanced, the benefits claimant must lose. Accordingly, we hold that the true doubt rule violates § 7(c) of the APA. Because we decide these cases on the basis of §7(c), we need not address the Court of Appeals’ holding in Greenwich Collieries that the true doubt rule conflicts with § 718.403 or with Mullins Coal, supra. Affirmed. Justice Souter, with whom Justice Blackmun and Justice Stevens join, dissenting. For more than 50 years, in adjudicating benefits claims under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U. S. C. § 901 et seq., and for more than 15 years under the Black Lung Benefits Act (BLBA), 30 U. S. C. §901 et seq. (1988 ed. and Supp. IV), the Department of Labor has applied the “true doubt” rule, providing that when the evidence submitted by a claimant and by a party opposing the award is of equal weight, the claimant wins. The rule thus places the risk of nonpersuasion on the opponent of the benefits claim. Today, the Court strikes the rule down as conflicting with § 7(c) of the Administrative Procedure Act (APA), 5 U. S. C. § 556(d), passed by Congress in 1946. I respectfully dissent. I So far as relevant, § 7(c) of the APA states that “[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence.” 5 U. S. C. § 556(d). The majority’s holding that “burden of proof” in the first sentence of this provision means “burden of persuasion” surely carries the force of the preferred meaning of the term in today’s general usage, as the Court’s opinion demonstrates. But we are concerned here not with the commonly preferred meaning of the term today, but with its meaning as understood and intended by Congress in enacting § 7(c) of the APA in 1946. That is not a matter about which preference has been constant, or Congress silent, or even a subject of first impression for this Court. The phrase “burden of proof” has been used in two ways, to mean either the burden of persuasion (the risk of nonpersuasion), see 9 J. Wigmore, Evidence §2486 (J. Chadbourn rev. 1981) (hereinafter Wigmore), or the burden of production (of going forward with evidence), see id., §2487. The latter sense arose from the standard common-law rule that in order “to keep the jury within the bounds of reasonable action,” the party bearing the burden of production had to put forth enough evidence to make a prima facie case in order to get to the jury. Ibid. At the turn of the century, Thayer noted that burden of proof, in the sense of “going forward with argument or evidence,” is “the meaning of the term in common speech... [and] also a familiar legal usage....” J. Thayer, A Preliminary Treatise on Evidence at the Common Law 385-386 (1898). Thayer described Chief Justice Shaw’s unsuccessful attempts to restrict the Massachusetts courts to the other (burden of persuasion) meaning of the phrase, id., at 355-357, 385-387, and n. 1, and argued that since the “widest legal usage” of the phrase and “the use of the phrase in ordinary discourse” was to mean burden of production, burden of proof should only be used in that sense, see Thayer, The Burden of Proof, 4 Harv. L. Rev. 45, 69 (1890). Although the Court works hard to show that the phrase had acquired a settled meaning in the alternative sense by the time the APA was passed in 1946, there is good	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 70 ]	sc_adminaction
KREMER v. CHEMICAL CONSTRUCTION CORP. No. 80-6045. Argued December 7, 1981 Decided May 17, 1982 White, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 486. Stevens, J., filed a dissenting opinion, post, p. 508. David A. Barrett argued the cause for petitioner. With him on the brief was Frederick A. 0. Schwarz, Jr. Robert Layton argued the cause and filed a brief for respondent. Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Joshua I. Schwartz, Constance L. Dupre, Philip B. Sklover, and Sandra G. Bryan. Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance. Justice White delivered the opinion of the Court. As one of its first acts, Congress directed that all United States courts afford the same full faith and credit to state court judgments that would apply in the State’s own courts. Act of May 26, 1790, ch. 11, 1 Stat. 122, 28 U. S. C. § 1738. More recently, Congress implemented the national policy against employment discrimination by creating an array of substantive protections and remedies which generally allows federal courts to determine the merits of a discrimination claim. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1976 ed. and Supp. IV). The principal question presented by this case is whether Congress intended Title VII to supersede the principles of comity and repose embodied in § 1738. Specifically, we decide whether a federal court in a Title VII case should give preclusive effect to a decision of a state court upholding a state administrative agency’s rejection of an employment discrimination claim as meritless when the state court’s decision would be res judicata in the State’s own courts. HH Petitioner Rubin Kremer emigrated from Poland in 1970 and was hired in 1973 by respondent Chemical Construction Corp. (Chemico) as an engineer. Two years later he was laid off, along with a number of other employees. Some of these employees were later rehired, but Kremer was not although he made several applications. In May 1976, Kremer filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), asserting that his discharge and failure to be rehired were due to his national origin and Jewish faith. Because the EEOC may not consider a claim until a state agency having jurisdiction over employment discrimination complaints has had at least 60 days to resolve the matter, § 706(c), 42 U. S. C. § 2000e-5(c), the Commission referred Kremer’s charge to the New York State Division of Human Rights (NYHRD), the agency charged with enforcing the New York law prohibiting employment discrimination. N. Y. Exec. Law §§295(6), 296(1)(a) (McKinney 1972 and Supp. 1981-1982). After investigating Kremer’s complaint, the NYHRD concluded that there was no probable cause to believe that Chemico had engaged in the discriminatory practices complained of. The NYHRD explicitly based its determination on the findings that Kremer was not rehired because one employee who was rehired had greater seniority, that another employee who was rehired filled a lesser position than that previously held by Kremer, and that neither Kremer’s creed nor age was a factor considered in Chemico’s failure to rehire him. The NYHRD’s determination was upheld by its Appeal Board as “not arbitrary, capricious or an abuse of discretion.” Kremer again brought his complaint to the attention of the EEOC and also filed, on December 6, 1977, a petition with the Appellate Division of the New York Supreme Court to set aside the adverse administrative determination. On February 27, 1978, five justices of the Appellate Division unanimously affirmed the Appeal Board’s order. Kremer could have sought, but did not seek, review by the New York Court of Appeals. Subsequently, a District Director of the EEOC ruled that there was no reasonable cause to believe that the charge of discrimination was true and issued a right-to-sue notice. The District Director refused a request for reconsideration, noting that he had reviewed the case files and considered the EEOC’s disposition as “appropriate and correct in all respects.” Kremer then brought this Title VII action in District Court, claiming discrimination on the basis of national origin and religion. Chemico argued from the outset that Kremer’s Title VII action was barred by the doctrine of res judicata. The District Court initially denied Chemico’s motion to dismiss. 464 F. Supp. 468 (SDNY 1978). The court noted that the Court of Appeals for the Second Circuit had recently found such state determinations res judicata in an action under 42 U. S. C. § 1981, Mitchell v. National Broadcasting Co., 553 F. 2d 265 (1977), but distinguished Title VII cases because of the statutory grant of de novo federal review. Several months later the Second Circuit extended the Mitchell rule to Title VII cases. Sinicropi v. Nassau County, 601 F. 2d 60 (per curiam), cert. denied, 444 U. S. 983 (1979). The District Court then dismissed the complaint on grounds of res judicata. 477 F. Supp. 587 (SDNY 1979). The Court of Appeals refused to depart from the Sinicropi precedent and rejected petitioner’s claim that Sinicropi should not be applied retroactively. 623 F. 2d 786 (1980). A motion for rehearing en banc was denied, and petitioner filed for a writ of certiorari. We issued the writ, 452 U. S. 960 (1981), to resolve this important issue of federal employment discrimination law over which the Courts of Appeals are divided. We now affirm. HH I — l Section 1738 requires federal courts to give the same pre-clusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged. Here the Appellate Division of the New York Supreme Court has issued a judgment affirming the decision of the NYHRD Appeals Board that the discharge and failure to rehire Kremer were not the product of the discrimination that he had alleged. There is no question that this judicial determination precludes Kremer from bringing “any other action, civil or criminal, based upon the same grievance” in the New York courts. N. Y. Exec. Law §300 (McKinney 1972). By its terms, therefore, §1738 would appear to preclude Kremer from relitigating the same question in federal court. Kremer offers two principal reasons why § 1738 does not bar this action. First, he suggests that in Title VII cases Congress intended that federal courts be relieved of their usual obligation to grant finality to state court decisions. Second, he urges that the New York administrative and judicial proceedings in this case were so deficient that they are not entitled to preclusive effect in federal courts and, in any event, the rejection of a state employment discrimination claim cannot by definition bar a Title VII action. We consider this latter contention in Part III. A Allen v. McCurry, 449 U. S. 90, 99 (1980), made clear that an exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal. There is no claim here that Title VII expressly repealed § 1738; if there has been a partial repeal, it must be implied. “It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored,” Radzanower v. Touche Ross & Co., 426 U. S. 148, 154 (1976); United States v. United Continental Tuna Corp., 425 U. S. 164, 168 (1976), and whenever possible, statutes should be read consistently. There are, however, “ ‘two well-settled categories of repeals by implication— (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest... Radzanower v. Touche Ross & Co., supra, at 154, quoting Posadas v. National City Bank, 296 U. S. 497, 503 (1936). The relationship of Title VII to § 1738 does not fall within either of these categories. Congress enacted Title VII to assure equality of employment opportunities without distinction with respect to race, color, religion, sex, or national origin. Alexander v. Gardner-Denver Co., 415 U. S. 36, 44 (1974); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973). To this end the EEOC was created and the federal courts were entrusted with ultimate enforcement responsibility. State antidiscrimination laws, however, play an integral role in the congressional scheme. Whenever an incident of alleged employment discrimination occurs in a State or locality which by law prohibits such discrimination and which has established an “authority to grant or seek relief from such [discrimination] or to institute criminal proceedings with respect thereto,” no charge of discrimination may be actively processed by the EEOC until the state remedy has been invoked and at least 60 days have passed, or the state proceedings have terminated. § 706(c), 42 U. S. C. § 2000e-5(c). Only after providing the appropriate state agency an opportunity to resolve the complaint may an aggrieved individual press his complaint before the EEOC. In its investigation to determine whether there is reasonable cause to believe that the charge of employment discrimination is true, the Commission is required to “accord substantial weight to final findings and orders made by State and local authorities in proceedings commenced under State or local law” pursuant to the limited deferral provisions of § 706, but is not bound by such findings. Alexander v. Gardner-Denver Co., supra, at 48, n. 8. If the EEOC finds reasonable cause to believe that discrimination has occurred, it undertakes conciliation efforts to eliminate the unlawful practice; if these efforts fail, the Commission may elect to bring a civil action to enforce the Act. If the Commission declines to do so, or if the Commission finds no reasonable cause to believe that a violation has occurred, “a civil action” may be brought by an aggrieved individual. § 706(f)(1), 42 U. S. C. § 2000e-5(f)(1). No provision of Title VII requires claimants to pursue in state court an unfavorable state administrative action, nor does the Act specify the weight a federal court should afford a final judgment by a state court if such a remedy is sought. While we have interpreted the “civil action” authorized to follow consideration by federal and state administrative agencies to be a “trial de novo,” Chandler v. Roudebush, 425 U. S. 840, 844-845 (1976); Alexander v. Gardner-Denver Co., supra, at 38; McDonnell Douglas Carp. v. Green, supra, at 798-799, neither the statute nor our decisions indicate that the final judgment of a state court is subject to redetermination at such a trial. Similarly, the congressional directive that the EEOC should give “substantial weight” to findings made in state proceedings, § 706(b), 42 U. S. C. § 2000e-5(b), indicates only the minimum level of deference the EEOC must afford all state determinations; it does not bar affording the greater preclusive effect which may be required by § 1738 if judicial action is involved. To suggest otherwise, to say that either the opportunity to bring a “civil action” or the “substantial weight” requirement implicitly repeals § 1738, is to prove far too much. For if that is so, even a full trial on the merits in state court would not bar a trial de novo in federal court and would not be entitled to more than “substantial weight” before the EEOC. The state courts would be placed on a one-way street; the finality of their decisions would depend on which side prevailed in a given case. Since an implied repeal must ordinarily be evident from the language or operation of a statute, the lack of such manifest incompatability between Title VII and § 1738 is enough to answer our inquiry. No different conclusion is suggested by the legislative history of Title VII. Although no inescapable conclusions can be drawn from the process of enactment, the legislative debates surrounding the initial passage of Title VII in 1964 and the substantial amendment adopted in 1972 plainly do not demonstrate that Congress intended to override the historic respect that federal courts accord state court judgments. At the time Title VII was written, over half of the States had enacted some form of equal employment legislation. Members of Congress agreed that the States should play an important role in enforcing Title VII, but also felt the federal system should defer only to adequate state laws. Congress considered a number of possible ways of achieving these goals, ranging from limiting Title VIPs jurisdiction to States without fair employment laws to having Congress or the President assess the adequacy of state laws. As Title VII emerged from the House, it empowered the EEOC to assess the adequacy of state laws and procedures. § 708(b), H. R. 7152, 88th Cong., 2d Sess. (1964). The Senate bill that was finally signed into law widened the state role by guaranteeing all States with fair employment practices laws an initial opportunity to resolve charges of discrimination. 42 U. S. C. § 2000e-5(c). Senator Humphrey, an advocate of strong enforcement, emphasized the state role under the legislation: “We recognized that many States already have functioning antidiscrimination programs to insure equal access to places of public accommodation and equal employment opportunity. We sought merely to guarantee that these States — and other States which may establish such programs — will be given every opportunity to employ their expertise and experience without premature interference by the Federal Government.” 110 Cong. Rec. 12725 (1964). Indeed, New York’s fair employment laws were referred to in the congressional debates by proponents of the legislation as an example of existing state legislation effectively combating employment discrimination. Nothing in the legislative history of the 1964 Act suggests that Congress considered it necessary or desirable to provide an absolute right to relitigate in federal court an issue resolved by a state court. While striving to craft an optimal niche for the States in the overall enforcement scheme, the legislators did not envision full litigation of a single claim in both state and federal forums. Indeed, the requirement of a trial de novo in federal district court following EEOC proceedings was added primarily to protect employers from overzealous enforcement by the EEOC. A memorandum signed by seven Representatives accompanying the compromise measure ultimately adopted, concluded that “we believe the employer or labor union will have a fairer forum to establish innocence since a trial de novo is required in district court proceedings.” H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Similar views were expressed in 1972 when Congress reconsidered whether to give the EEOC adjudicatory and enforcement powers. There is also reason to believe that Congress required that the EEOC give state findings “substantial weight” because the Commission had too freely ignored the determinations handed down by state agencies. An important indication that Congress did not intend Title VII to repeal § 1738’s requirement that federal courts give full faith and credit to state court judgments is found in an exchange between Senator Javits, a manager of the 1972 bill, and Senator Hruska. Senator Hruska, concerned with the potential for multiple independent proceedings on a single discrimination charge, had introduced an amendment which would have eliminated many of the duplicative remedies for employment discrimination. Senator Javits argued that the amendment was unnecessary because the doctrine of res judicata would prevent repetitive litigation against a single defendant: “[T]here is the real capability in this situation of dealing with the question on the basis of res judicata. In other words once there is a litigation — a litigation started by the Commission, a litigation started by the Attorney General, or a litigation started by the individual — the remedy has been chosen and can be followed through and no relitigation of the same issues in a different forum would be permitted.” 118 Cong. Rec. 3370 (1972). Senator Williams, another proponent of the 1972 bill, echoed Senator Javits’ remarks: “I do not believe that the individual claimant should be allowed to litigate his claim to completion in one forum, and then if dissatisfied, go to another forum to try again.” Id., at 3372. After Senator Javits and Senator Williams spoke, an evenly divided Senate refused to approve the Hruska amendment. It is sufficiently clear that Congress, both in 1964 and 1972, though wary of assuming the adequacy of state employment discrimination remedies, did not intend to supplant such laws. We conclude that neither the statutory language nor the congressional debates suffice to repeal § 1738’s longstanding directive to federal courts. B Our finding that Title VII did not create an exception to § 1738 is strongly suggested if not compelled by our recent decision in Allen v. McCurry that preclusion rules apply in 42 U. S. C. § 1983 actions and may bar federal courts from freshly deciding constitutional claims previously litigated in state courts. Indeed, there is more in § 1983 to suggest an implied repeal of §1738 than we have found in Title VII. In Allen, we noted that “one strong motive” behind the enactment of § 1983 was the “grave congressional concern that the state courts had been deficient in protecting federal rights.” 449 U. S., at 98-99. Nevertheless, we concluded that “much clearer support than this would be required to hold that § 1738 and the traditional rules of preclusion are not applicable to § 1983 suits.” Id., at 99. Because Congress must “clearly manifest” its intent to depart from § 1738, our prior decisions construing Title VII in situations where §1738 is inapplicable are not dispositive. They establish only that initial resort to state administrative remedies does not deprive an individual of a right to a federal trial de novo on a Title VII claim. In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Chandler v. Roudebush, 425 U. S. 840 (1976), we held that the “civil action” in federal court following an EEOC decision was intended to be a trial de novo. This holding, clearly supported by the legislative history, is not a holding that a prior state court judgment can be disregarded. The petitioner and the Courts of Appeals which have denied res judicata effect to such judgments rely heavily on our statement in Alexander v. Gardner-Denver that “final responsibility for enforcement of Title VII is vested with federal courts.” 415 U. S., at 44. We did not say, and our language should not be read to imply, that by vesting “final responsibility” in one forum, Congress intended to deny finality to decisions in another. The context of the statement makes this clear. In describing the operation of Title VII, we noted that the EEOC cannot adjudicate claims or impose sanctions; that responsibility, the “final responsibility for enforcement,” must rest in federal court. The holding in Gardner-Denver was that a private arbitration decision concerning an employment discrimination claim did not bind the federal courts. Arbitration decisions, of course, are not subject to the mandate of § 1738. Furthermore, unlike arbitration hearings under collective-bargaining agreements, state fair employment practice laws are explicitly made part of the Title VII enforcement scheme. Our decision in Gardner-Denver explicitly recognized the “distinctly separate nature of these contractual and statutory rights.” Id., at 50. Here we are dealing with a state statutory right, subject to state enforcement in a manner expressly provided for by the federal Act. Gardner-Denver also rested on the inappropriateness of arbitration as a forum for the resolution of Title VII issues. The arbitrator’s task, we recognized, is to “effectuate the intent of the parties rather than the requirements of enacted legislation.” Id., at 56-57. The arbitrator’s specialized competence is “the law of the shop, not the law of the land,” and “the factfinding process in arbitration usually is not equivalent to judicial factfinding.” Ibid. These characteristics cannot be attributed to state administrative boards and state courts. State authorities are charged with enforcing laws, and state courts are presumed competent to interpret those laws. Finally, the comity and federalism interests embodied in § 1738 are not compromised by the application of res judicata and collateral estoppel in Title VII cases. Petitioner maintains that the decision of the Court of Appeals will deter claimants from seeking state court review of their claims ultimately leading to a deterioration in the quality of the state administrative process. On the contrary, stripping state court judgments of finality would be far more destructive to the quality of adjudication by lessening the incentive for full participation by the parties and for searching review by state officials. Depriving state judgments of finality not only would violate basic tenets of comity and federalism, Board of Regents v. Tomanio, 446 U. S. 478, 488, 491-492 (1980), but also would reduce the incentive for States to work towards effective and meaningful antidiscrimination systems. HH HH HH The petitioner nevertheless contends that the judgment should not bar his Title VII action because the New York courts did not resolve the issue that the District Court must hear under Title VII — whether Kremer had suffered discriminatory treatment — and because the procedures provided were inadequate. Neither contention is persuasive. Although the claims presented to the NYHRD and subsequently reviewed by the Appellate Division were necessarily based on New York law, the alleged discriminatory acts are prohibited by both federal and state laws. The elements of a successful employment discrimination claim are virtually identical; petitioner could not succeed on a Title VII claim consistently with the judgment of the NYHRD that there is no reason to believe he was terminated or not rehired because of age or religion. The Appellate Division’s affirmance of the NYHRD’s dismissal necessarily decided that petitioner’s claim under New York law was meritless, and thus it also decided that a Title VII claim arising from the same events would be equally meritless. The more serious contention is that even though administrative proceedings and judicial review are legally sufficient to be given preclusive effect in New York, they should be deemed so fundamentally flawed as to be denied recognition under § 1738. We have previously recognized that the judicially created doctrine of collateral estoppel does not apply when the party against whom the earlier decision is asserted did not have a “full and fair opportunity” to litigate the claim or issue, Allen v. McCurry, 449 U. S., at 95; Montana v. United States, 440 U. S. 147, 153 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 328-329 (1971). “Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana v. United States, supra, at 164, n. 11. Cf. Gibson v. Berryhill, 411 U. S. 564 (1973). Our previous decisions have not specified the source or defined the content of the requirement that the first adjudication offer a full and fair opportunity to litigate. But for present purposes, where we are bound by the statutory directive of § 1738, state proceedings need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause in order to qualify for the full faith and credit guaranteed by federal law. It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the ef-feet of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken. McElmoyle v. Cohen, 13 Pet. 312, 326 (1839); Mills v. Duryee, 7 Cranch 481, 485 (1813). As we recently noted in Allen v. McCurry, supra, “though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.” 449 U. S., at 96. The State must, however, satisfy the applicable requirements of the Due Process Clause. A State may not grant preclusive effect in its own courts to a constitutionally infirm judgment, and other state and federal courts are not required to accord full faith and credit to such a judgment. Section 1738 does not suggest otherwise; other state and federal courts would still be providing a state court judgment with the “same” preclusive effect as the courts of the State from which the judgment emerged. In such a case, there could be no constitutionally recognizable preclusion at all. We have little doubt that Kremer received all the process that was constitutionally required in rejecting his claim that he had been discriminatorily discharged contrary to the statute. We must bear in mind that no single model of procedural fairness, let alone a particular form of procedure, is dictated by the Due Process Clause. Mitchell v. W. T. Grant Co., 416 U. S. 600, 610 (1974); Inland Empire Council v. Millis, 325 U. S. 697, 710 (1945). “‘The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”’ Mitchell v. W. T. Grant Co., supra, at 610 (quoting Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961)). Under New York law, a claim of employment discrimination requires the NYHRD to investigate whether there is “probable cause” to believe that the complaint is true. Before this determination of probable cause is made, the claimant is entitled to a “full opportunity to present on the record, though informally, his charges against his employer or other respondent, including the right to submit all exhibits which he wishes to present and testimony of witnesses in addition to his own testimony.” State Div. of Human Rights v. New York State Drug Abuse Comm’n, 59 App. Div. 2d 332, 336, 399 N. Y. S. 2d 541, 544 (1977). The complainant also is entitled to an opportunity “to rebut evidence submitted by or obtained from the respondent.” 9 N. Y. C. R. R. § 465.6 (1977). He may have an attorney assist him and may ask the division to issue subpoenas. 9 N. Y. C. R. R. § 465.12(c) (1977). If the investigation discloses probable cause and efforts at conciliation fail, the NYHRD must conduct a public hearing to determine the merits of the complaint. N. Y. Exec. Law § 297(4)(a) (McKinney Supp. 1981-1982). A public hearing must also be held if the Human Rights Appeal Board finds “there has not been a full investigation and opportunity for the complainant to present his contentions and evidence, with a full record.” State Div. of Human Rights v. New York State Drug Abuse Comm’n, supra, at 337, 399 N. Y. S. 2d, at 544-545. Finally, judicial review in the Appellate Division is available to assure that a claimant is not denied any of the procedural rights to which he was entitled and that the NYHRD’s determination was not arbitrary and capricious. N. Y. Civ. Prac. Law § 7803 (McKinney 1981). See Gregory v. New York State Human Rights Appeal Board, 64 App. Div. 2d 775, 776, 407 N. Y. S. 2d 256, 257 (1978); Tenenbaum v. State Div. of Human Rights, 50 App. Div. 2d 257, 259, 376 N. Y. S. 2d 542, 544 (1975). We have no hesitation in concluding that this panoply of procedures, complemented by administrative as well as judicial review, is sufficient under the Due Process Clause. Only where the evidence submitted by the claimant fails, as a matter of law, to reveal any merit to the complaint may the NYHRD make a determination of no probable cause without holding a hearing. Flah’s, Inc. v. Schneider, 71 App. Div. 2d 993, 420 N. Y. S. 2d 283, 284 (1979). See n. 21, supra. And before that determination may be reached, New York requires the NYHRD to make a full investigation, wherein the complainant has full opportunity to present his evidence, under oath if he so requests. State Div. of Human Rights v. New York State Drug Abuse Control Comm’n, supra, at 336, 399 N. Y. S. 2d, at 544. The fact that Mr. Kremer failed to avail himself of the full procedures provided by state law does not constitute a sign of their inadequacy. Cf. Juidice v. Vail, 430 U. S. 327, 337 (1977). > I — ( In our system of jurisprudence	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
BOESCHE, ADMINISTRATOR, v. UDALL, SECRETARY OF THE INTERIOR. No. 332. Argued February 25, 1963. Decided May 27, 1963. Leon BenEzra arguéd the cause for petitioner. With him on the briefs was Lewis E. Hoffman. Solicitor General Cox argued the cause for respondent. With him on the brief were Louis F. Claiborne, Roger P. Marquis and A. Donald Mileur. Scott A. Pfohl, A. G. McClintock, V. P. Cline, Clinton D. Vernon, J. E. Horigan, A. T. Smith, Clair M. Senior and L. C. White filed a brief for the Rocky Mountain Oil & Gas Association et al., as amici curiae, urging reversal. Mr. Justice Harlan delivered the opinion of the Court. The question presented in this case is whether the Secretary of the Interior has authority to cancel in an administrative proceeding a lease of public lands issued under the provisions of the Mineral Leasing Act of 1920, 30 U. S. C. §§ 181 et seq., in circumstances where such lease was granted in violation of the Act and regulations promulgated thereunder. Because of' a seeming conflict in principle between the decision of the Court of Appeals in this case, 112 U. S. App. D. C. 344, 303 F. 2d 204, and that of the Court of Appeals for the Tenth Circuit in Pan American Petroleum Corp. v. Pierson, 284 F. 2d 649, and also because of the importance of the question to the proper administration of the Mineral Leasing Act, we brought the case here. 371 U. S. 886. For reasons stated hereafter we affirm the judgment below. Section 17 of the Mineral Leasing Act, 30 U. S. C. § 226, authorizes the Secretary of the Interior to grant to the first qualified applicant, without competitive bidding, oil and gas leases of lands in the public domain not within a known geologic structure. These are called “noncompetitive” leases. A departmental regulation provides that “no offer” for a noncompetitive lease “may be made for less than 640 acres except . . . where the land is surrounded by lands not available for leasing under the act.” 43. CFR § 192.42 (d). “Not available” has always been administratively construed to mean lands not available ' for leasing to anyone. Hence lands covered only by an outstanding application for a lease are considered available, Natalie Z. Shell, 62 I. D. 417 (1955), and therefore subject to the 640-acre requirement.; On September 11, 1956, petitioner applied to the Santa Fe Land Office in New Mexico (whose authority also embraces Oklahoma) for an 80-aere noncompetitive lease of land in Oklahoma. There was already on file an application by one Connell for a noncompetitive lease of an adjoining 40-acre tract, but no lease had issued to Con-nell at the time of petitioner’s application. Immediately following petitioner’s application two other persons, Cuccia and Conley, filed for a lease of the entire 120 acres. On December 1, 1956, the 40-acre lease issued to Connell, the.validity of which is not questioned here. In November 1957 an 80-acre lease issued to petitioner. Following notification that their 120-acre application had been rejected, Cuccia and Conley pursued a departmental appeal, 43 CFR §§ 221.1-221.2. This ultimately resulted in a cancellation of petitioner’s lease on the ground that having failed to include in his application the adjoining 40-acre tract (no lease to • Connell having then been issued), his 80-acre application was invalid, thus leaving the Cuccia and Conley application in respect of that tract . prior in right.' Accordingly a lease to them was directed. The ensuing litigation instituted by petitioner in the Federal District Court resulted in the judgment of the Court of Appeals, now under review, sustaining the administrative cancellation. Petitioner’s claim before this Court rests on § 31 of the Mineral Leasing Act, 30 U. S. C. § 188, as amended, which, in pertinent part, reads as follows: “Except as otherwise herein provided, any lease, issued under the provisions of . . . [this Act] may be forfeited and canceled by an appropriate proceeding in the United States district court for the district in which the property, or some part, thereof, is located whenever the lessee fails to comply with any of the provisions of . . . [the Act], of the lease, or of the general regulations promulgated under . . . [the Act] and in force at the date of the lease .... “Any lease issued after August 21,1935, under the provisions of . . . [§ 17 of the Act, 30 U. S. C. § 226] shall be subject to cancellation by the Secretary of the Interior after thirty days’ notice upon the failure of the lessee to comply with any of the provisions of the lease, unless or until the land covered by any such lease is known to contain valuable deposits of oil or gas.” Petitioner contends: (1) § 31 is the exclusive source of the Secretary’s power to forfeit á lease once.it has been issued; (2) the section, by its second paragraph, limits administrative ..cancellation to instances where a lessee has failed-to comply with the terms of his lease and then only so long as the land is not known to contain oil or gas; (3) since petitioner failed to comply not with the terms of his lease but with a 'departmental regulation, cancellation of his lease was governed by the first paragraph of .§ 31, which requires a judicial proceeding. The Secretary, on the other hand, contends: (1) the provisions of § 31 as a whole apply only to events, whether in violation of lease terms, the Act, or the regulations, occurring after a lease has been issued; (2) the Secretary’s authority to cancel on the basis of pre-lease events is found not in § 31 but in his general powers of management over lands in the public domain; (3) that authority remained unaffected by the Mineral Leasing Act. I. We think that the Secretary, under his general powers of management over the public lands, had authority to cancel this lease administratively for invalidity at its inception, unless such authority was withdrawn by‘the Mineral Leasing Act.' With respect to earlier statutes containing no express administrative cancellation authority, this Court, in Cameron v. United States, 252 U. S. 450, found such authority to exist. In there sustaining the Secretary’s power to cancel administratively an invalid mining claim, the Court said (at p. 461): '“True, the mineral land law does not in itself confer such authority on the land department. Neither does it place the authority elsewhere. But this does not mean that the authority does not exist anywhere, for, in the absence of some direction to the contrary, the general statutory provisions before mentioned vest it in the land department.” The statutory provisions referred to by the Court are those vesting the Secretary with general managerial powers over the public lands. The Secretary has also long been held to possess the same authority with respect to other kinds of interests in public lands: Harkness & Wife v. Underhill, 1 Black 316; Lee v. Johnson, 116 U. S. 48; Orchard v. Alexander, 157 U. S. 372 (all involving homestead entries); Brown v. Hitchcock, 173 U. S. 473 (selection list); Knight v. United States Land Assn., 142 U. S. 161 (erroneous survey) ; Hawley v. Diller, 178 U. S. 476 (timber land entry); Riverside Oil Co. v. Hitchcock, 190 U. S. 316 (lieu land selection). .The continuing vitality of this general administrative authority was recently confirmed by us in Best v. Humboldt Placer Mining Co., 371 U. S. 334. We are not persuaded by petitioner’s argument — based on cases holding that land patents once delivered and accepted could be canceled only in judicial proceedings (e. g., Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530) — that the administrative cancellation power established by Cameron and the other cases cited, is confined to so-called equitable interests, and that a lease, which is said to resemble more closely the legal interest conveyed by a land patent, is not subject to such power. We think that no matter how the interest conveyed is denominated the true line of demarcation is whether as a result of the transaction “all authority or control” over the lands has passed from “the Executive Department,” Moore v. Robbins, supra, at 533, or whether the Government continues to possess some measure of control over them. Unlike a land patent, which divests the Government of title, Congress under the Mineral Leasing Act has not only reserved to the United States the fee interest in the leased land, but has also subjected the lease to exacting restrictions and continuing supervision by the Secretary. Thus, assignments and subleases must be approved by the Secretary, 30 U. S. C. § 187; he may direct complete suspension of operations on the land, 30 U. S. C. § 209, or require the lessee to operate under a. cooperative or unit plan, 30 U. S. C. (Supp. IV, 1963), § 226 (j); and he may prescribe, as he has, rules and regulations governing in' minute detail all facets of the working of the land, 30 U. S. C. § 189; 30 CFR, pt. 221. In short, a mineral lease does not give the lessee anything approaching the full ownership of a fee patentee, nor does it convey an unencumbered estate in the minerals. Since the Secretary’s connection with the land continues to subsist, he should have the power, in a proper case, to correct his own errors. The dispositive question in this case, therefore, is whether this general administrative power of cancellation was withdrawn by § 31 of the Mineral Leasing Act. To that question we now turn. II. We believe that both the statute on its face and the legislative history of the enactment show that § 31 reaches only cancellations based on post-lease events and leaves unaffected the Secretary’s traditional administrative authority to cancel on the basis of pre-lease factors. 1. Were § 31 deemed to be the exclusive source of the power to cancel, the Act, in respect of its “first qualified applicant” requirement relating to noncompetitive leases, would be self-defeating. For in cases where there had been no breach of a lease, statute, or regulations by the lessee, the factor which alone brings § 31 into play (p. 475, supra), the Secretary would be powerless to cancel the lease even if the lessee had not been the first qualified applicant. Thus, a local land office manager might, without fault on the part of the lessee, inadvertently’ or purposefully issue a lease to a nonqualified applicant. Yet under petitioner’s view of the law the Secretary would be wholly unable, either in administrative or judicial proceedings, to remedy such illegal action. 2. The first paragraph of § 31 — the one on which petitioner’s case depends — speaks entirely in terms of post-lease occurrences. Thus in providing that a lease may be forfeited in judicial proceedings “whenever the lessee [not an applicant for a lease] fails to comply with any of the provisions of . . . [the Act], of the lease, or of the general • regulations promulgated under . . . [the Act] and in force at the date of the lease ...” (emphasis added), the provision clearly assumes the existence of a valid lease. It therefore does not cover a situation where, as here, the lease has not been issued at the time the breach of the Act or regulations occurs, for there is at that time no lease to cancel, 3. The other forfeiture provisions of the Mineral Leasing Act, as originally enacted, are, with one partial exception, also all concerned with post-lease events. Thus cancellation of a lease in judicial proceedings was authorized when the lessee drilled within 200 feet of the lease boundary (§ 16, 41 Stat. 443), or failed to'comply with the provision granting rights of way for pipelines through public lands. (§ 28, 41 Stat. 449). And with respect to prospecting permits, administrative cancellation was authorized for the permittee’s failure to exercise his prospecting rights with due diligence (§ 26, 41 Stat. 448). The sole exception to this post-issuance scheme of forfeiture — and only a partial one at that — -is found in § 27, 41 Stat. 448,. which provides for judicial forfeiture of interests in excess of certain minimum acreage allowances. But even here it is apparent that the statute was less concerned with initially invalid awards of excessive acreage than with the subsequent pooling of the interests of separate grantees, having the effect of avoiding the acreage limitation. Section 27 was in part born of fears that large oil companies might obtain a monopoly of the oil resources in public lands. See H. R. Rep. No. 206, 65th Cong., 2d Sess., p. 5. 4. The background of the Mineral Leasing Act also points against the likelihood that Congress intended to cur.tail the Secretary’s general power respecting administrative cancellation of leases which had been invalidly issued (pp. 476-478, supra,). Public lands valuable for their oil deposits had been opened to entry as placer mining claims by the Act of February 11, 1897, 29 Stat. 526. In 1909, confronted with a rapid depletion of petroleum reserves under this system, the President issued a proclamation withdrawing from further entry pending the enactment of conservation legislation upwards of 3,000,000 acres of land in California . and Wyoming. In 1914 a mineral leasing bill passed both Houses of Congress but died in conference at the close of the session, see H. R. Rep. No. 668, 63d Cong., 2d Sess., and a mineral leasing program was considered by each subsequent Congress until the Mineral Leasing Act of 1920 was passed. The committee reports reveal that one of the main congressional concerns was the prevention of an overly rapid consumption of oil resources that the Government, particularly the Navy, might need in the future. See H. R. Rep. No. 206, 65th Cong., 2d Sess. 5. Conservation through control was the dominant theme of the debates. See, e. g., H. R. Rep. No. 398, 66th Cong.,' 1st Sess. 12-13. The report on an earlier version of the bill that eventually became the Mineral Leasing Act stated: “The legislation provided for herein, it is thought, will go a long way toward . . . reserving] to the Government the right to supervise, control, and regulate the . . . [development of natural resources], and prevent monopoly and waste and other lax methods that have grown up in the administration of our public-land laws.” H. R. Rep. No. 1138, 65th Cong., 3d Sess. 19. It would thus be surprising to find in the Act, which was intended to expand, not contract, the Secretary’s control over the mineral lands of the United States, a restriction on the Secretary’s power to cancel leases issued through administrative error — a power which was then already firmly established. See pp. 476-478, supra. More particularly, we can perceive no reason why Congress should have given the Secretary authority to cancel administratively a prospecting permit (later a noncompetitive lease), § 26, 41 Stat. 448, on the basis of post-issuance events, but implicitly denied him that power in respect of pre-issuance occurrences. The fragmentary excerpts of legislative history relied on by petitioner do not suggest an opposite conclusion, 'the comment that “the Secretary of the Interior has no right or authority under the bill to cancel a lease” was made in the course of a discussion on the floor of the ■Senate about lands on which there were producing wells in existence, and it was assumed that there had been a post-issuance violation of the terms of the lease; the Secretary here claims no authority to cancel a lease in such a situation. The remark in the House debátes that “there must be a showing made in court before the forfeiture can be secured” occurred in discussion relating to § 27 of. the Act, which is, as we have seen, a partial exception to the general scheme of forfeitures. III. From the beginnings of the Mineral Leasing Act the Secretary has conceived that he had the power drawn in question here, and Congress has never interfered with its exercise. The power was first invoked with respect to prospecting permits, as to which the statute authorized administrative cancellation only on the basis of post-issuance breach (note 8, supra, and accompanying text). See, e. g., Leach v. Cornell, No. A-1687 (unpublished departmental decision, Aug. 13, 1921); McCarthy v. Son, No. A-2398 (unpublished-decision, Mar. 4, 1922); Murray v. McNabb, No. A-4412 (unpublished decision, Feb. 14, 1923); Moon v. Woodrow, 51 I. D. 118 (1925); Drake v. Simmons, No. A-16885 (unpublished decision, Oct. 28, 1932). Following the replacement of prospecting permits by noncompetitive leases in 1935 (note 8, supra), the same power was exercised with- respect to them. See, e. g., Fenelon Boesche, No. A-21230 (unpublished decision, Feb. 21, 1938); Reay v. Lackie, 60 I. D. 29 (1947) ; Iola Morrow, No. A-27177 (unpublished decision, Oct. 10, 1955); R. S. Prows, 66 I. D. 19 (1959). Although the Act, as it relates to oil and gas leases, has been amended a dozen times in the last 40 years, Congress has never interfered with this long-continued administrative practice. The conclusion is plain that Congress, if it did not ratify the Secretary’s conduct, at least did not regard it as inconsistent with the Mineral Leasing Act. Cf. Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 293; Fleming v. Mohawk Co., 331 U. S. 111, 116; Billings v. Truesdell, 321 U. S. 542, 552-553. IV. The present case is a peculiarly appropriate one for administrative determination in the first instance. At issue was simply the question whether petitioner’s lease offer was defective because it failed to include an adjoining 40-acre tract under application by another party, and this question had already been decided adversely to petitioner's position by the Secretary in a previous case interpreting the governing departmental regulations. Natalie Z. Shell, supra. Matters of this nature do not warrant initial submission to the judicial process. Indeed the magnitude and complexity of the leasing program conducted by the Secretary make it likely that a seriously detrimental effect on the prompt and efficient administration of both the public domain and the federal courts might well be the consequence of a shift from the Secretary to the courts of the power to cancel such defective leases. Recognition of the Secretary’s power here serves to protect the public interest in the administration of the public domain. Cancellation of this kind of erroneously issued lease gives effect to regulations designed to check the undue splitting up of tracts, which might facilitate frauds, hinder the development of oil and gas resources, and render supervision very burdensome. See Annie Dell Wheatley, 62 I. D. 292, 293-294 (1955). In addition, exercise of the administrative power in cases of this type safeguards the statutory rights of conflicting claimants. In the day-to-day operation of the Bureau of Land Management, the managers of the local land offices act on each lease application in chronological sequence. If the land is available, if the applicant is qualified, and if the application appears to conform to the regulations, a lease will issue. In due course the manager will come to conflicting applications for the same land. If a later applicant is not the first qualified, his application will be denied. The notice of denial will probably afford the first occasion for an applicant to investigate whether he was in truth the first qualified applicant, and to appeal on this ground to the Director of the Bureau of Land Management and the Secretary of the Interior. Thus, given the nature of the land office’s business, the power of cancellation, at least while conflicting applications are pending, is essential to secure the rights of competing applicants. We sanction no broader rule than is called for by the exigencies of the general situation and the circumstances of this particular case. We hold only that the Secretary has the power to correct administrative errors of the sort involved here by cancellation of leases in proceedings timely instituted by competing applicants for the same land. In so holding we do not open the door to administrative abuses. The regulations of the Department of the Interior provide for adversary proceedings on. appeals taken within the Department where other private parties will be affected by the decision. See generally 43 CFR, pt. 221. Appeal is of right, 43 CFR §§ 221.1, 221.31, the appellant is required to notify his opponent, 43 CFR §§ 221.4, 221.34, and the latter has full rights of participation, 43 CFR §§ 221.5-221.6, 221.35. And final action by the Secretary, see 43 CFR § 221.37, has always been subject to judicial review. 30 Ú. S. C. (Supp. IV, 1963), § 226 — 2; see; e. g., Noble v. Union River Logging R. Co., 147 U. S. 165; Moore v. Robbins, supra. We conclude that the judgment of the Court of Appeals must be Affirmed. Competitive bidding is required for leases of lands that are within known geologic structures. Petitioner is actually the administrator of the estate of the original applicant, but for convenience this opinion will disregard the distinction. Pending the outcome of this litigation, the Land Office Manager has withheld cancellation of petitioner’s lease. We limited the writ of certiorari to the single question of the authority of the Secretary to cancel this lease administratively, 371 U. S. 886, not bringing here for review the validity of the Secretary's interpretation of the minimum-acreage regulation which was sustained' by the Court of Appeals. See note 8, infra. R. S. §.441, 5 U. S.' C. § 485,. charges the- Secretary “with the supervision of public business relating to . -. . [p]ublie lands, including mines.” He is directed by R. S. § 453, 43 U. S. C. § 2, to “perform all executive duties ... in anywise respecting . . . public lands [of the United States],” and R. S. §2478, 43 U. S. C. § 1201, authorizes him “to enforce and carry into execution, by appropriate regulations, every part of the provisions of . . . [the Title dealing with public lands] not otherwise specially provided for.” In contrast, compare the interest of a mining claimant whose location is perfected: “The rule is established by innumerable decisions of this Court, and of state and lower federal courts, that when the location of- a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited without- infringing any right or title of the United States. The right of the owner is taxable by the state; and is ‘real property’ subject to the lien of a judgment .... The owner is not required to purchase the claim or secure patent from the United States; but so long as he complies with the provisions of the mining laws, his possessory right, for all practical purposes of ownership, is as good as though secured by patent.” Wilbur v. Krushnic, 280 U. S. 306, 316-317. The Act originally authorized issuance of a prospecting permit to a qualified applicant for land not within a known geologic structure. § 13, 41 Stat. 441. In 1935 prospecting permits were converted to noncompetitive leases, 49 Stat. 674, 676, and the provision for administrative cancellation for breach of the conditions of the grant before the land was proven was carried over to § 17. 49 Stat. 678. In 1946 this provision was transferred from § 17 to §31. 60 Stat. 956. As explained in S. Rep. No. 1392, 79th Cong., 2d Sess., p. 3, this transfer effected no substantive change in .the Secretary’s powers: “Section 31 of the Mineral Leasing Act is amended to consolidate in that section various provisions of the act relating to termination or forfeiture of leases for default by the lessee, the substance of the existing law being retained in the amended section.” 58 Cong. Rec. 4168. 58 Cong.' Rec. 7604. In Melish Consolidated Placer Oil Mining Co. v. Testerman, 53 I. D. 205 (1930), the First Assistant Secretary of the Interior stated that the “lease once granted was beyond recall by the Secretary and is only subject to cancellation in the Federal courts (Sec. 31, act of February 25, 1920).” This dictum, expressed with reference to a competitive lease, casts no doubt on the Secretary’s uniform course of decision regarding permits and noncompetitive leases. See Act of April 30, 1926, 44 Stat. 373; Act of July 3, 1930, 46 Stat. 1007; Act of March 4, 1931, 46 Stat. 1523; Act of August 21, 1935, 49 Stat. 674; Act of August 26, 1937, 50 Stat. 842; Act of August 8, 1946, 60 Stat. 950; Act of June 1, 1948, 62 Stat. 285; Act of September 1, 1949, 63 Stat. 682; Act of July 29, 1954, 68 Stat. 583; Act of August 2, 1954, 68 Stat. 648;-Act of September 21, 1959, 73 Stat. 571; Act of September 2, 1960, 74 Stat. 781. The Secretary, in his brief (pp. 12-13), informs us that on June 30, 1960, there were 139,000 outstanding leases supervised by the Department of the Interior under the Mineral Leasing Act, which covered 113,000,000 acres: The total number of outstanding leases supervised by the Department under all programs — public lands, acquired lands, Indian, Naval Petroleum Reserve and Outer Continental Shelf — was 159,000, covering 125,000,000 acres. In many instances there are multiple applications for leases of the samé land, sometimes hundreds for the same tract. For example, in a one-month period in 1961 there were 10,742 applications filed in the Santa Fe Land Office alone, many of which affected the same acreage. And in the three-year period ending June 30, 1960, there were 1,129 administrative cancellations out of the total of 54,000 leases issued during that period. Petitioner contends that if an administrative cancellation proceeding is permitted to the Secretary, it would be imprudent for a lessee, since his interest would thus be precarious, to assume the financial risk of developing his lease, and therefore the effective term of his lease would be curtailed even if he were finally held to be the first qualified applicant. But the same delay — and perhaps even a longer one — would result if the Secretary were remitted to judicial proceedings for cancellation.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 25 ]	sc_adminaction
FRIBOURG NAVIGATION CO., INC. v. COMMISSIONER OF INTERNAL REVENUE. No. 23. Argued November 10, 1965. Decided March 7, 1966. James B. Lewis argued the cause for petitioner. With him on the briefs were Simon H. Rifkind and Ernest Rubenstein. Jack S. Levin argued the cause for respondent. With him on the brief were Acting Solicitor General Spritzer, Acting Assistant Attorney General Roberts and Harry Baum. Briefs of amici curiae, urging reversal, were filed by Ellis Lyons and Jess S. Raban for the American Automotive Leasing Association, and by Leland W. Scott for S & A Co. Mr. Chief Justice Warren delivered the opinion of the Court. The question presented for determination is whether, as a matter of law, the sale of a depreciable asset for an amount in excess of its adjusted basis at the beginning of the year of sale bars deduction of depreciation for that year. On December 21, 1955, the taxpayer, Fribourg Navigation Co., Inc., purchased the S. S. Joseph Feuer, a used Liberty ship, for $469,000. Prior to the acquisition, the taxpayer obtained a letter ruling from the Internal Revenue Service advising that the Service would accept straight-line depreciation of the ship over a useful economic life of three years, subject to change if warranted by subsequent experience. The letter ruling also advised that the Service would accept a salvage value on the Feuer of $5 per dead-weight ton, amounting to $54,000. Acting in accordance with the ruling the taxpayer computed allowable depreciation, and in its income tax returns for 1955 and 1956 claimed ratable depreciation deductions for the 10-day period from the date of purchase to the end of 1955 and for the full year 1956. The Internal Revenue Service audited the returns for each of these years and accepted the depreciation deductions claimed without adjustment. As a result of these depreciation deductions, the adjusted basis of the ship at the beginning of 1957 was $326,627.73. In July of 1956, Egypt seized the Suez Canal. During the ensuing hostilities the canal became blocked by sunken vessels, thus forcing ships to take longer routes to ports otherwise reached by going through the canal. The resulting scarcity of available ships to carry cargoes caused sales prices of ships to rise sharply. In January and February of 1957, even the outmoded Liberty ships brought as much as $1,000,000 on the market. In June 1957, the taxpayer accepted an offer to sell the Feuer for $700,000. Delivery was accomplished on December 23, 1957, under modified contract terms which reduced the sale price to $695,500. Prior to the sale of the Feuer, the taxpayer adopted a plan of complete liquidation pursuant to the provisions of § 337 of the Internal Revenue Code of 1954, which it thereafter carried out within 12 months. Thus, no tax liability was incurred by the taxpayer on the capital gain from the sale of the ship. As it developed, the taxpayer’s timing was impeccable — by December 1957, the shipping shortage had abated and Liberty ships were being scrapped for amounts nearly identical to the $54,000 which the taxpayer and the Service had originally predicted for salvage value. On its 1957 income tax return, for information purposes only, the taxpayer reported a capital gain of $504,239.51 on the disposition of the ship, measured by the selling price less the adjusted basis after taking a depreciation allowance of $135,367.24 for 357½ days of 1957. The taxpayer’s deductions from gross income for 1957 included the depreciation taken on the Feuer. Although the Commissioner did not question the original ruling as to the useful life and salvage value of the Feuer and did not reconsider the allowance of depreciation for 1955 and 1956, he disallowed the entire depreciation deduction for 1957. His position was sustained by a single judge in the Tax Court and, with one dissent, by a panel of the Court of Appeals for the Second Circuit. 335 F. 2d 15. The taxpayer and the Commissioner agreed that the question is important, that it is currently being heavily litigated, and that there is a conflict between circuit courts of appeals on this issue. Therefore, we granted certiorari. 379 U. S. 998. We reverse. I. The Commissioner takes the position here and in a Revenue Ruling first published the day before the trial of this case in the Tax Court that the deduction for depreciation in the year of sale of a depreciable asset is limited to the amount by which the adjusted basis of the asset at the beginning of the year exceeds the amount realized from the sale. The Commissioner argues that depreciation deductions are designed to give a taxpayer deductions equal to the “actual net cost” of the asset to the taxpayer, and since the sale price of the Feuer exceeded the adjusted basis as of the first of the year, the use of the ship during 1957 “cost” the taxpayer “nothing.” By tying depreciation to sale price in this manner, the Commissioner has commingled two distinct and established concepts of tax accounting — depreciation of an asset through wear and tear or gradual expiration of useful life and fluctuations in the value of that asset through changes in price levels or market values. Section 167 (a) of the Internal Revenue Code of 1954 provides, in language substantially unchanged in over 50 years of revenue statutes: “There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business, or (2) of property held for the production of income.” In United States v. Ludey, 274 U. S. 295, 300-301, the Court described depreciation as follows: “The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost.” See also Detroit Edison Co. v. Commissioner, 319 U. S. 98, 101. In so defining depreciation, tax law has long recognized the accounting concept that depreciation is a process of estimated allocation which does not take account of fluctuations in valuation through market appreciation. It is, of course, undisputed that the Commissioner may require redetermination of useful life or salvage value when it becomes apparent that either of these factors has been miscalculated. The fact of sale of an asset at an amount greater than its depreciated basis may be evidence of such a miscalculation. See Macabe Co., 42 T. C. 1105, 1115 (1964). But the fact alone of sale above adjusted basis does not establish an error in allocation. That is certainly true when, as here, the profit on sale resulted from an unexpected and short-lived, but spectacular, change in the world market. The Commissioner contends that our decisions in Massey Motors, Inc. v. United States, 364 U. S. 92, and Hertz Corp. v. United States, 364 U. S. 122, confirm his theory. To the extent these cases are relevant here at all, they support the taxpayer's position. In Massey and Hertz we held that when a taxpayer, at the time he acquires an asset, reasonably expects he will use it for less than its full physical or economic life, he must, for purposes of computing depreciation, employ.a useful life based on the period of expected use. We recognized in those cases that depreciation is based on estimates as to useful life and salvage value. Since the original estimates here were admittedly reasonable and proved to be accurate, there is no ground for disallowance of depreciation. II. This concept of depreciation is reflected in the Commissioner’s own regulations. The reasonable allowance provided for in § 167 is explained in Treas. Reg. § 1.167 (a)-l as “that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan... so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the depreciable property, equal the cost or other basis of the property.... The allowance shall not reflect amounts representing a mere reduction in market value.” Treas. Reg. § 1.167 (a)-l (c) defines salvage value as the amount, determined at the time of acquisition, which is estimated will be realizable upon sale or when it is no longer useful in the taxpayer’s trade or business. That section continues: “Salvage value shall not be changed at any time after the determination made at the time of acquisition merely because of changes in price levels. However, if there is a redetermination of useful life... salvage value may be redetermined based upon facts known at the time of such redetermination of useful life.” Useful life may be redetermined “only when the change in the useful life is significant and there is a clear and convincing basis for the redetermination.” Treas. Reg. § 1.167 (a)-l (b). This carefully constructed regulatory scheme provides no basis for disallowances of depreciation when no challenge has been made to the reasonableness or accuracy of the original estimates of useful life or salvage value. Further, from 1951 until after cer-tiorari was granted in this case, the regulations dealing with amortization in excess of depreciation contained an example expressly indicating that depreciation could be taken on a depreciable asset in the year of profitable sale of that asset. The Commissioner relies heavily on Treas. Reg. § 1.167 (b)-0 providing that the reasonableness of a claim for depreciation shall be determined “upon the basis of conditions known to exist at the end of the period for which the return is made.” He contends that after the sale the taxpayer “knew” that the Feuer had “cost” him “nothing” in 1957. This again ignores the distinction between depreciation and gains through market appreciation. The court below admitted that the increase in the value of the ship resulted from circumstances “normally associated with capital gain.” The intended interplay of § 167 and the capital gains provisions is clearly reflected in Treas. Reg. § 1.167 (a)-8 (a)(1), which provides: “Where an asset is retired by sale at arm’s length, recognition of gain or loss will be subject to the provisions of sections 1002, 1231, and other applicable provisions of law.” III. The Commissioner’s position represents a sudden and unwarranted volte-face from a consistent administrative and judicial practice followed prior to 1962. The taxpayer has cited a wealth of litigated cases and several rulings in which, the Commissioner unhesitatingly allowed depreciation in the year of favorable sale. Against this array of authority, the Commissioner contends that he did not “focus” on the issue in most of these instances. This is hardly a persuasive response to the overwhelmingly consistent display of his position. One might well speculate that the Commissioner did not “focus” on the issue in many cases because he treated it as too well settled for consideration. Moreover, in several instances, the Commissioner did not merely consent to depreciation in the year of sale, but insisted over the taypayer’s objection that it be taken. The Commissioner adds that in Wier Long Leaf Lumber Co., 9 T. C. 990, rev’d on other grounds, 173 F. 2d 549, he did focus on the issue and there contended that no depreciation could be taken in the year of sale. However, in Wier the Tax Court allowed depreciation as to one class of assets and the Commissioner promptly acquiesced in the decision. 1948-1 Cum. Bull. 3. This acquiescence was not withdrawn until 14 years later when the Commissioner adopted his present position. 1962-1 Cum. Bull. 5. Although we recognize that such an acquiescence does not in and of itself commit the Commissioner to this interpretation of the law, it is a significant addition to the already convincing array of authority showing the Commissioner’s consistent prior position. The Commissioner attempts further to explain away the authority aligned against him by stating that most of the cases and rulings prior to 1942 (when capital gain treatment was provided for sales above adjusted basis) are irrelevant since the gain on sale was taxed at the same ordinary income rate that would have been applied had depreciation been disallowed. This contention does not explain away the Commissioner’s sudden decision that allowance of such depreciation involves a fundamental error in the basic concept of depreciation. Further, other than his lack of “focus,” the Commissioner has had no explanation for those cases in which capital gain on sale was involved. Even in those cases before this Court upon which the Commissioner relies for support of his theory, depreciation was willingly allowed in the year of sale. In Massey Motors, Inc. v. United States, supra, although contesting the useful life of the automobiles involved, the Commissioner allowed depreciation to an estimated value of $1,325 despite sales for an average of $1,380. 364 U. S., at 94-95. And in Hertz Corp. v. United States, supra, the Commissioner accepted claims of depreciation deductions up to the date of sale, objecting only to the taxpayer’s attempt to obtain refunds by changing retroactively to the double declining balance method of depreciation. The fact that there are presently several hundred cases in litigation over this issue where before there were none adds testimony to the inescapable conclusion that the Commissioner has broken with consistent prior practice in espousing the novel theory he now urges upon us. The authority relied on in Revenue Ruling 62-92, Cohn v. United States, 259 F. 2d 371, does not support this departure from established practice. Cohn was simply a case in which the taxpayer had assigned no salvage value to the property involved, and the Court of Appeals found no clear error in the selection of the amount realized on disposition of the asset at the end of its scheduled useful life as a reasonable yardstick by which to measure salvage value. As has been aptly stated of Cohn, “It does not purport to set up an automatic hindsight re-evalution which becomes a self-executing redetermination of salvage value triggered by the sale of depreciable assets.” Motorlease Corp. v. United States, 215 F. Supp. 356, 363, rev’d, 334 F. 2d 617, pet. for cert. filed. In his brief in Cohn, the Commissioner did not rest his case on anything resembling his position here, but relied principally on the fact that the taxpayer himself had sought an adjustment of useful life and that, under the regulations, “if there is a rede-termination of useful life, the salvage value may be redetermined.” Brief for the United States, pp. 24-26, in Cohn v. United States, 259 F. 2d 371, quoted in Merritt, Government briefs in Cohn refute IRS disallowance of year-of-sale depreciation, 20 J. Taxation 156, 158 (1964). IV. Over the same extended period of years during which the foregoing administrative and judicial precedent was accumulating, Congress repeatedly re-enacted the depreciation provision without significant change. Thus, beyond the generally understood scope of the depreciation provision itself, the Commissioner’s prior long-standing and consistent administrative practice must be deemed to have received congressional approval. See, e. g., Cammarano v. United States, 358 U. S. 498, 510 — 511; United States v. Leslie Salt Co., 350 U. S. 383, 396-397; Helvering v. Winmill, 305 U. S. 79, 83. The legislative history in this area makes it abundantly clear that Congress was cognizant of the revenue possibilities in sales above depreciated cost. In 1942 Congress restored capital gain treatment to sales of depre-ciable assets. The accompanying House Report stated that it would be “an undue hardship” on taxpayers who were able to sell depreciable property at a gain over depreciated cost to treat such gain as ordinary income. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 54 (1942). This, of course, is pro tanto the effect of disallowing depreciation in the year of sale above adjusted basis. It would be strange indeed, especially in light of the House Report, to conclude that Congress labored to create a tax provision which, in application to depreciable property, could by administrative fiat be made applicable only to sales of assets for amounts exceeding their basis at the beginning of the year- of sale, and then only to the excess. In succeeding years Congress was repeatedly asked to enact legislation treating gains on sales of depreciated property as ordinary income; it declined to do so until 1962. In 1961, in his Tax Message to Congress, the President observed that existing law permitted taxpayers to depreciate assets below their market value and, upon sale, to treat the difference as capital gain. The Secretary of the Treasury concurred in this position. The exhibits appended not only contain no mention of the Commissioner’s power to require recalculation of depreciation in the year of sale, but refute the existence of such power. In example after example cited by the Treasury, the taxpayer had depreciated an asset, sold it for an amount in excess of its depreciated basis, and treated the difference as capital gain. The Treasury asserted that existing law permitted this practice, and made no mention of the power which the Commissioner now alleges he possesses to disallow- year-of-sale depreciation. In 1962 Congress enacted § 1245 of the Internal Revenue Code of 1954, providing that gain on future dispositions of depreciable personal property be treated as ordinary income to the extent of depreciation taken. For post-1962 transactions § 1245 applies to the situation which occurred in the instant case and would produce greater revenue. The taxpayer must report as ordinary income all depreciation recouped on sale, and this notwithstanding that the sale was part of a nonrecognition liquidation within § 337. In 1964, a more complex recapture provision dealing with real property was enacted. This time, however, Congress took into account the fact that increases in the value of real property are often attributable to a rise in the general price level and limited recapture of depreciation as ordinary income to a percentage of the excess over straight-line depreciation. H. R. Rep. No. 749, 88th Cong., 1st Sess., 101-102 (1963); S. Rep. No. 830, 88th Cong., 2d Sess., 132-133 (1964). The Commissioner’s position would ignore any such limitation. Compounding congressional activity in this area with repeated re-enactment of the depreciation provision in the face of the prior consistent administrative practice, we find the Commissioner’s position untenable. y. Finally, the Commissioner’s position contains inconsistencies. He contends that depreciation must be disallowed in 1957 since the amount received on sale shows that the use of the asset “cost” the taxpayer “nothing” in that year. But under this view, since the asset was sold at an amount greater than its original purchase price, it “cost” the taxpayer “nothing” in 1955 and 1956 as well. The Commissioner’s reliance on the structure of the annual income tax reporting system does not cure the illogic of his theory. Further, the Commissioner apparently will not extend his new theory to situations where it would benefit the taxpayer. If a depre-ciable asset is sold for less than its adjusted basis, it would seem to follow from the Commissioner’s construction that the asset has "cost” the taxpayer an additional amount and that further depreciation should be permitted. However, Revenue Ruling 62-92 does not extend to such a case and the Commissioner has expressly refused to make it do so. The conclusion we have reached finds support among nearly all lower federal courts that have recently dealt with this issue. Upon consideration en banc, the Tax Court itself has concluded that the Commissioner’s position is without authorization in the statute or the regulations. In light of the foregoing, we conclude that the depreciation claimed by the taxpayer for 1957 was erroneously disallowed. Reversed. Rev. Rul. 62-92, 1962-1 Cum. Bull. 29 (originally T. I. R. 384, June 7, 1962). That Ruling provides in part: “■ ■ ■ the deduction for depreciation of an asset used in the trade or business or in the production of income shall be adjusted in the j'ear of disposition so that the deduction, otherwise properly allowable for such year under the taxpayer’s method of accounting for depreciation, is limited to the amount, if any, by which the adjusted basis of the property at the beginning of such j'ear exceeds the amount realized from sale or exchange.” See, e. g., Macabe Co., 42 T. C. 1105, 1109; Wier Long Leaf Lumber Co., 9 T. C. 990, 999, rev’d on other grounds, 173 F. 2d 549; Note, 50 Va. L. Rev. 1431 (1964); Comment, 11 U. C. L. A. L. Rev. 593 (1964). See also Montgomery’s Auditing 268 (8th ed. 1957). Treas. Reg. § 1.1238-1, Example (1), based on H. R. Rep. No. 3124, 81st Cong., 2d Sess., 29 (1950), amended to conform to the Commissioner’s present position on June 1, 1965. 1965-1 Cum. Bull. 366. See, e. g., United States v. Ludey, 274 U. S. 295 (1927); Eldorado Coal & Mining Co. v. Mager, 255 U. S. 522, 526 (1921); Beckridge Corp. v. Commissioner, 129 F. 2d 318 (C. A. 2d Cir. 1942); Clark Thread Co. v. Commissioner, 100 F. 2d 257 (C. A. 3d Cir. 1938), affirming 28 B. T. A. 1128, 1140 (1933); Kittredge v. Commissioner, 88 F. 2d 632 (C. A. 2d Cir. 1937); Seymour Mfg. Co. v. Burnet, 56 F. 2d 494, 495-496 (C. A. D. C. Cir. 1932); Hall v. United States, 95 Ct. Cl. 539, 43 F. Supp. 130, 131-132, cert. denied, 316 U. S. 664 (1942); Herbert Simons, 19 B. T. A. 711, 712-713 (1930); Max Eichenberg, 16 B. T. A. 1368, 1370 (1929); Louis Kalb, 15 B. T. A. 865, 866 (1929); Even Realty Co., 1 B. T. A. 355, 356 (1925); H. L. Gatlin, 19 CCH Tax Ct. Mem. 131, 132 (1960); P. H. & J. M. Brown Co., 18 CCH Tax Ct. Mem. 708, 709-710 (1959). G. C. M. 1597, VI-1 Cum. Bull. 71 (1927); S. M. 2112, III-2 Cum. Bull. 22 (1924); A. R. R. 6930, III-l Cum. Bull. 45 (1924) ; I. T. 1494, 1-2 Cum. Bull. 19 (1922). See also I. T. 1158,1-1 Cum. Bull. 173 (1922). In Herbert Simons, supra, note 4, the taxpayers tried without success to forgo the depreciation deduction for the year of sale since the taxes payable on the resulting increase in ordinary income would have been less than the increased amount payable under the existing capital gain provision if depreciation were taken. In several other cases the Commissioner expressly required a year-of-sale depreciation deduction, thus increasing the gain on the sale. See, e. g., Clark Thread Co. v. Commissioner, Kittredge v. Commissioner, Even Realty Co., supra, note 4. The Commissioner’s argument that the decision in Wier was ambiguous since the court there disallowed depreciation of another asset in the year of sale is without merit. The court carefully rested its decision disallowing depreciation of that asset on the fact that there was no evidence in the record which would permit it to ascertain reasonable salvage value. With respect to the other class of assets, the court stated: “The parties have by their stipulation narrowed the scope of controversy. They present for consideration only the question whether the price received from the sale of the depreciated automobiles precludes any depreciation allowance.” 9 T. C. 990, 999. The court held: “The depreciation deduction can not be disallowed merely by reason of the price received for the article without consideration of other factors.” Ibid. See Hall v. United States, Herbert Simons, Max Eichenberg, H. L. Gatlin, P. H. & J. M. Brown Co., supra, note 4; G. C. M. 1597, VI-1 Cum. Bull. 71 (1927). See also cases cited, note 6, supra. See 165 F. Supp. 261, 265, 269, and Transcript of Record in Hertz in this Court, at 13-18. Note, for example, the Court’s reliance on Wier Long Leaf Lumber Co., discussed in note 7, supra. 259 F. 2d, at 378-379. Indeed, the opinion in Cohn clearly recognizes the established practice of depreciation which the Commissioner would have us overthrow. The Court there noted: “Necessarily, salvage value is also an estimate made at the time when the asset is first subject to a depreciation allowance.... If the asset is sold at a price in excess of its depreciated value, such excess is taxable in the nature of a capital gain.” Id., at 377. Int. Bev. Code, 1939, §117 (j), 56 Stat. 846 (now Int. Rev. Code, 1954, §1231). See, e. g., Hearings before the House Ways and Means Committee, 80th Cong., 1st Sess., on Revenue Revisions, pt. 5, p. 3756 (1948), at which the Treasury recommended that gains on sales of depreciable assets should be subject to ordinary income taxation to the extent the gains arose from accelerated depreciation; Hearings before the Senate Finance Committee, 83d Cong., 2d Sess., on H. R. 8300, pt. 3, p. 1324 (1954), at which Congress was asked by the American Institute of Accountants to enact that all gains on sales of depreciable assets be treated as ordinary income. See also Treasury Department Release A-761, February 15, 1960. The President stated: “Another flaw which should be corrected at this time relates to the taxation of gains on the sale of depreciable business property. Such gains are now taxed at the preferential rate applicable to capital gains, even though they represent ordinary income. “This situation arises because the statutory rate of depreciation may not- coincide with the actual decline in the value of the asset. While the taxpayer holds the property, depreciation is taken as a deduction from ordinary income. Upon its resale, where the amount of depreciation allowable exceeds the decline in the actual value of the asset so that a gain occurs, this gain under present law is taxed at the preferential capital gains rate. The advantages resulting from this practice have been increased by the liberalization of depreciation rates. “I therefore recommend that capital gains treatment be withdrawn from gains on the disposition of depreciable property, both personal and real property, to the extent that depreciation has been deducted for such property by the seller in previous years, permitting only the excess of the sales price over the original cost to be treated as a capital gain.” Message on Taxation, Hearings before the Committee on Ways and Means, House of Representatives, H. R. Doc. No. 140, 87th Cong., 1st Sess., 11 (1961). Id., at 40. Id., at 262-267. See also Treas. Reg. § 1.1238-1, note 3, supra. In 1963, with the instant case already in the courts, Congress for the first time alluded to the position now taken by the Commissioner, noting that: “... it has been held that depreciation deductions should not be allowed to the extent they reduce'the adjusted basis of the property below the actual amount realized. This provision, in providing for ordinary income treatment for certain additional depreciation, is not intended to affect this holding.” H. R. Rep. No. 749, 88th Cong., 1st Sess., 103 (1963); S. Rep. No. 830, 88th Cong., 2d Sess., 133 (1964). In Engineers Limited Pipeline Co., 44 T. C. 226 (1965), the taxpayer contended that he should get a further depreciation deduction on assets which he sold for less than their depreciated basis. The Commissioner disallowed the additional deduction. See also Whitaker v. Commissioner, 259 F. 2d 379. See United States v. S & A Co., 338 F. 2d 629 (C. A. 8th Cir.), affirming 218 F. Supp. 677 (D. C. D. Minn.), pet. for cert. filed; Occidental Loan Co. v. United States, 235 F. Supp. 519 (D. C. S. D. Calif.); Wyoming Builders, Inc. v. United States, 227 F. Supp. 534 (D. C. D. Wyo.); Motorlease Corp. v. United States, 215 F. Supp. 356 (D. C. D. Conn.), reversed on the authority of the decision below in the instant case, 334 F. 2d 617 (C. A. 2d	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
CITY OF CHICAGO et al. v. INTERNATIONAL COLLEGE OF SURGEONS et al. No. 96-910. Argued October 14, 1997 Decided December 15, 1997 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 175. Benna Ruth Solomon argued the cause for petitioners. With her on the briefs were Lawrence Rosenthal and Anne Berleman Kearney. Richard J Brennan argued the cause for respondents. With him on the brief were Kimball R. Anderson and Thomas C. Cronin. Briefs of amici curiae urging reversal were filed for the State of Indiana by Jeffrey A Modisett, Attorney General, and Geoffrey Slaughter and Anthony Scott Chinn, Deputy Attorneys General; for Defenders of Property Rights by Nancie G. Marzulla; and for the National Trust for Historie Preservation et al. by Paul M. Smith, Elizabeth S. Merritt, Laura S. Nelson, and Edith M. Shine. Justice O’Connor delivered the opinion of the Court. The city of Chicago, like municipalities throughout the " country, has an ordinance that provides for the designation and protection of historical landmarks. Chicago Municipal Code, Art. XVII, §§2-120-580 through 2-120-920 (1990). The city’s Landmarks Ordinance is administered by the Commission on Chicago Historical and Architectural Landmarks (Chicago Landmarks Commission or Commission). Pursuant to the Illinois Administrative Review Law, Ill. Comp. Stat., ch. 735, §§5/3-103,5/3-104 (Supp. 1997), judicial review of final decisions of a municipal landmarks commission lies in state circuit court. In this case, we are asked to consider whether a lawsuit filed in the Circuit Court of Cook County seeking judicial review of decisions of the Chicago Landmarks Commission may be removed to federal district court, where the case contains both federal constitutional and state administrative challenges to the Commission’s decisions. I Respondents International College of Surgeons and the United States Section of the International College of Surgeons (jointly ICS) own two properties on North Lake Shore Drive in the city of Chicago. In July 1988, the Chicago Landmarks Commission made a preliminary determination that seven buildings on Lake Shore Drive, including two mansions on ICS’ properties, qualified for designation as a landmark district under the city’s Landmarks Ordinance. In June 1989, the city council enacted an ordinance (the Designation Ordinance) designating the landmark district. In February 1989, after the determination, ICS executed a contract for the sale and redevelopment of its properties. The contract called for the developer, whose interest has since been acquired by respondent Robin Construction Company, to demolish all but the facades of the two mansions and to construct a high-rise condominium tower. In October 1990, ICS applied to the Landmarks Commission for the necessary permits to allow demolition of a designated landmark. The Commission denied the permit applications, finding that the proposed demolition would “adversely affect and destroy significant historical and architectural features of the [landmark] district.” App. 49. ICS then reapplied for the permits under a provision of the Landmarks Ordinance allowing for exceptions in cases of economic hardship. The Commission again denied the applications, finding that ICS did not qualify for the hardship exception. Following each of the Commission’s decisions, ICS filed actions for judicial review in the Circuit Court of Cook County pursuant to the Illinois Administrative Review Law. Both of ICS’ complaints raised a number of federal constitutional claims, including that the Landmarks and Designation Ordinances, both on their face and as applied, violate the Due Process and Equal Protection Clauses and effect a taking of property without just compensation under the Fifth and Fourteenth Amendments, and that the manner in which the Commission conducted its administrative proceedings violated ICS’ rights to due process and equal protection. The complaints also sought relief under the Illinois Constitution as well as administrative review of the Commission’s decisions denying the permits. The defendants (collectively City), who are petitioners in this Court, removed both lawsuits to the District Court for the Northern District of Illinois on the basis of federal question jurisdiction. The District Court consolidated the eases. After dismissing some of the constitutional claims and exercising supplemental jurisdiction over the state law claims, the court granted summary judgment in favor of the City, ruling that the Landmarks and Designation Ordinances and the Commission’s proceedings were consistent with the Federal and State Constitutions, and that the Commission’s findings were supported by the evidence in the record and were not arbitrary and capricious. The Court of Appeals for the Seventh Circuit reversed and remanded the ease to state court, concluding that the District Court was without jurisdiction. 91 F. 3d 981 (1996). The Seventh Circuit began its analysis by construing this Court’s decisions in Chicago, R. I. & P. R. Co. v. Stude, 846 U. S. 574 (1954), and Horton v. Liberty Mut. Ins. Co., 367 U. S. 348 (1961), which it read to suggest that “the character of the state judicial action” is significant when assessing whether proceedings to review state and local administrative decisions can be removed to federal court. 91 F. 3d, at 988. The court reasoned that, while Stude and Horton establish that proceedings to conduct de novo review of state agency action are subject to removal, the propriety of removing proceedings involving deferential review is still an open question. Relying on decisions from other Courts of Appeals that interpret the scope of a district court’s diversity jurisdiction, the court determined that deferential review of state agency action was an appellate function that was “ineonsist-ent with the character of a court of original jurisdiction.” 91 F. 3d, at 990 (citing Fairfax County Redevelopment & Housing Authority v. W. M. Schlosser Co., 64 F. 3d 155 (CA4 1995), and Armistead v. C & M Transport, Inc., 49 F. 3d 43 (CA1 1995)). Accordingly, the court concluded, a proceeding to review state administrative action under a deferential standard is not a “civil action” within a district court’s “original jurisdiction” under the removal statute, 28 U. S. C. § 1441(a), and so cannot be removed. 91 F. 3d, at 990. The court then applied those principles to this ease. The court began by observing that, under the Illinois Administrative Review Law, judicial review of local administrative decisions is deferential and not de novo, because the reviewing court must accept the agency’s findings of fact as presumptively correct and cannot hear new evidence. Id., at 991-992 (discussing Ill. Comp. Stat., ch. 735, § 5/3-110 (Supp. 1997)). Of the various claims raised in ICS’ complaints, the court explained, the as-applied constitutional challenges and the claims requesting administrative review of the Commission’s decisions are bound by the administrative record, but the facial constitutional challenges are independent of the record and so would be removable to federal court if brought alone. The court then addressed whether, “when the state action involves both claims that, if brought alone, would be removable to federal court [and] issues that clearly are grounded in the administrative record, removal of the entire state action to the district court is possible.” 91 F. 3d, at 993. The court ruled that, because some of the claims involve deferential review, “the ease removed to the district court cannot be termed a ‘civil action... of which the district courts... have original jurisdiction’ within the meaning of” the removal statute. Id., at 994 (quoting 28 U. S. C. § 1441(a)). We granted certiorari to address whether a ease containing' claims that local administrative action violates federal law, but also containing state law claims for on-the-record review of the administrative findings, is within the jurisdiction of federal district courts. 520 U. S. 1164 (1997). Because neither the jurisdictional statutes nor our prior decisions suggest that federal jurisdiction is lacking in these circumstances, we now reverse. We have reviewed on several occasions the circumstances in which eases filed initially in state court may be removed to federal court. See, e. g., Caterpillar Inc. v. Williams, 482 U. S. 386, 391-392 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63 (19870; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 7-12 (1983). As a general matter, defendants may remove to the appropriate federal district court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U. S. C. § 1441(a). The propriety of removal thus depends on whether the ease originally could have been filed in federal court. Caterpillar Inc., supra, at 392; Franchise Tax Bd., supra, at 8. The district courts have original jurisdiction under the federal question statute over cases “arising under the Constitution, laws, or treaties of the United States.” § 1331. “It is long settled law that a cause of action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of federal law.” Metropolitan Life Ins. Co., supra, at 63. In this case, there can be no question that ICS’ state court complaints raised a number of issues of federal law in the form of various federal constitutional challenges to the Landmarks and Designation Ordinances, and to the manner in which the Commission conducted the administrative proceedings. It is true, as ICS asserts, that the federal constitutional claims were raised by way of a cause of action created by state law, namely, the Illinois Administrative Review Law. See Howard v. Lawton, 22 Ill. 2d 331, 333, 175 N. E. 2d 556, 557 (1961) (constitutional claims may be raised in a complaint for administrative review). As we have explained, however, “[e]ven though state law creates [a party’s] causes of action, its case might still ‘arise under’ the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law.” Franchise Tax Bd., 463 U. S., at 13; see also id., at 27-28 (case arises under federal law when “federal law creates the cause of action or... the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law”); Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936) (federal question exists when a “right or immunity created by the Constitution or laws of the United States [is] an element, and an essential one, of the plaintiff’s cause of action”). ICS’ federal constitutional claims, which turn exclusively on federal law, unquestionably fit within this rule. Accordingly, ICS errs in relying on the established principle that a plaintiff, as master of the complaint, can “choose to have the cause heard in state court.” Caterpillar Inc., 482 U. S., at 398-399. By raising several claims that arise under federal law, ICS subjected itself to the possibility that the City would remove the case to the federal courts. See ibid. As for ICS’ accompanying state law claims, this Court has long adhered to principles of pendent and ancillary jurisdiction by which the federal courts’ original jurisdiction over federal questions carries with it jurisdiction over state law claims that “derive from a common nucleus of operative fact,” such that “the relationship between [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ ” Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966); see Hurn v. Oursler, 289 U. S. 238 (1933); Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909). Congress has codified those principles in the supplemental jurisdiction statute, which combines the doctrines of pendent and ancillary jurisdiction under a common heading..28 U. S. C. § 1367. The statute provides, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” § 1367(a). That provision applies with equal force to cases removed to federal court as to cases initially filed there; a removed case is necessarily one “of which the district courts... have original jurisdiction.” See § 1441(a); Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 350-351 (1988) (discussing pendent claims removed to federal court). Here, once the case was removed, the District Court had original jurisdiction over ICS* claims arising under federal law, and thus could exercise supplemental jurisdiction over the accompanying state law claims so long as those claims constitute “other claims that... form part of the same case or controversy.” § 1367(a). We think it clear that they do. The claims for review of the Commission’s decisions are legal “claims,” in the sense that that term is generally used in this context to denote a judicially cognizable cause of action. And the state and federal claims “derive from a common nucleus of operative fact,” Gibbs, supra, at 725, namely, ICS’ unsuccessful efforts to obtain demolition permits from the Chicago Landmarks Commission. That is all the statute requires to establish supplemental jurisdiction (barring an express statutory exception, see § 1367(a)). ICS seemed to recognize as much in the amended complaint it filed in the District Court following removal, stating that the nonfederal claims “are subject to this Court’s pendent jurisdiction.” App. 143. We conclude, in short, that the District Court properly exercised federal question jurisdiction over the federal claims in ICS’ complaints, and properly recognized that it could thus also exercise supplemental jurisdiction over ICS’ state law claims. B ICS, urging us to adopt the reasoning of the Court of Appeals, argues that the District Court was without jurisdiction over its actions because they contain state law claims that require on-the-record review of the Landmarks Commission’s decisions. A claim that calls for deferential judicial review of a state administrative determination, ICS asserts, does not constitute a “civil action... of which the district courts of the United States have original jurisdiction” under 28 U. S. C. § 1441(a). That reasoning starts with an erroneous premise. Because this is a federal question case, the relevant inquiry is not, as ICS submits, whether its state claims for on-the-record review of the Commission’s.decisions are “civil actions” within the “original jurisdiction” of a district court: The District Court’s original jurisdiction derives from ICS’ federal claims, not its state law claims. Those federal claims suffice to make the actions “civil actions” within the “original jurisdiction” of the district courts for purposes of removal. § 1441(a). The Court of Appeals, in fact, acknowledged that ICS’ federal claims, “if brought alone, would be removable to federal court.” 91 F. 3d, at 993. Nothing in the jurisdictional statutes suggests that the presence of related state law claims somehow alters the fact that ICS’ complaints, by virtue of their federal claims, were “civil actions” within the federal courts’ “original jurisdiction.” Having thus established federal jurisdiction, the relevant inquiry respecting the accompanying state claims is whether they fall within a district court’s supplemental jurisdiction, not its original jurisdiction. And that inquiry turns, as we have discussed, on whether the state law claims “are so related to [the federal] claims... that they form part of the same ease or controversy.” § 1367(a); see Gibbs, supra, at 725, n. 12 (distinguishing between “the issue whether a claim for relief qualifies as a ease ‘arising under... the Laws of the United States’ and the issue whether federal and state claims constitute one ‘case’ for pendent jurisdiction purposes”). ICS’ proposed approach — that we first determine whether its state claims constitute “civil actions” within a district court’s “original jurisdiction” — would effectively read the supplemental jurisdiction statute out of the books: The whole point of supplemental jurisdiction is to allow the district courts to exercise pendent jurisdiction over claims as to which original jurisdiction is lacking. The dissent attributes a different line of argument to ICS. Post, at 186-187. That argument, roughly speaking, is that federal jurisdiction would lie over ICS’ federal claims if they had been brought under 42 U. S. C. § 1983, because review would then range beyond the administrative record; but ICS deliberately confined review of its claims to the administrative record by raising them under the Illinois Administrative Review Law, thereby assuring itself a state forum. See Brief for Respondents 21-26. The essential premise of ICS’ argument is that its actions arise solely under state law and so are not within the district courts’ federal question jurisdiction, and that § 1367(a) — which presupposes a “civil action of which the district courts have original jurisdiction” — is thus inapplicable. Id., at 15-21. That reasoning is incorrect because ICS in fact raised claims not bound by the administrative record (its facial constitutional claims), see supra, at 162, and because, as we have explained, see supra, at 164, the facial and as-applied federal constitutional claims raised by ICS “arise under” federal law for purposes of federal question jurisdiction. See New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 372 (1989) (“[A] facial challenge to an allegedly unconstitutional... zoning ordinance” is a claim “which we would assuredly not require to be brought in state courts”). ICS submits, however, that although its complaints contain some claims that arise under federal law, its actions nonetheless do not fall within the district courts’ original jurisdiction over federal questions. Brief for Respondents 20-21, 26. Understandably, ICS does not rest this proposition on the notion that its federal claims are so insubstantial as not to establish federal jurisdiction. See, e. g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 817 (1986); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 70-71 (1978); Gibbs, 383 U. S., at 725. It follows, then, that ICS’ view that the district courts lack jurisdiction even over the federal claims in its actions stems from the mistaken idea — embraced by the court below, see 91 F. 3d, at 993-994, and n. 14 — that the other, nonfederal claims somehow take the complaints in their entirety (including the federal claims) out of the federal courts’ jurisdiction. ICS’ rationale thus ultimately devolves into the erroneous argument we ascribe to it: that its state law claims for on-the-record review of the Commission’s decisions must be “civil actions” within the district courts’ “original jurisdiction” in order for its complaints to be removable to federal court. C To the extent that ICS means to suggest not only that a claim involving deferential review of a local administrative decision is not a “civil action” in the “original jurisdiction” of the district courts, but also that such a claim can never constitute a claim “so related to claims... within such original jurisdiction that [it] form[s] part of the same case or controversy” for purposes of supplemental jurisdiction, we disagree with its reasoning. There is nothing in the text of § 1367(a) that indicates an exception to supplemental jurisdiction for claims that require on-the-record review of a state or local administrative determination. Instead, the statute generally confers supplemental jurisdiction over “all other claims” in the same case or controversy as a federal question, without reference to the nature of review. Congress could of course establish an exception to supplemental jurisdiction for claims requiring deferential review of state administrative decisions, but the statute, as written, bears no such construction. Nor do our decisions in Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574 (1954), and Horton v. Liberty Mut. Ins. Co., 367 U. S. 348 (1961), on which ICS principally relies, require that we read an equivalent exception into the statute. Both Stude and Horton — to the extent that either might be read to establish limits on the scope of federal jurisdiction — address only whether a cause of action for judicial review of a state administrative decision is within the district courts’ original jurisdiction under the diversity statute, 28 U. S. C. § 1332, not whether it is a claim within the district courts’ pendent jurisdiction in federal question cases. Even assuming, arguendo, that the decisions are relevant to the latter question, both Stude and Horton indicate that federal jurisdiction generally encompasses judicial review of state administrative decisions. In Stude, for instance, a railroad company challenging the amount of a condemnation assessment attempted to establish federal jurisdiction by two separate routes. First, the railroad fled a complaint seeking review of the amount of the assessment in federal eourt on the basis of diversity jurisdiction, and second, it filed an appeal from the assessment in state eourt and then undertook to remove that ease to federal eourt. As to the action filed directly in federal eourt, this Court upheld its dismissal, finding that state eminent domain proceedings were' still pending and that the complaint thus improperly attempted to “separate the question of damages and try it apart from the substantive right from which the claim for damages arose.” 346 U. S., at 582. ICS emphasizes the Court’s observation in this interlocutory context that a district court “does not sit to review on appeal action taken administratively or judicially in a state proceeding.” Id., at 581. By that remark, however, the Court did not suggest that jurisdiction turned on whether judicial review of the administrative determination was deferential or de novo. The decision, in fact, makes no reference to the standard of review. Moreover, reading the Court’s statement broadly to suggest that federal courts can never review local administrative decisions would conflict with the Court’s treatment of the second action in the case: the railroad’s attempt to remove its state court appeal to federal court. With respect to that action, the Court held that removal was improper in the particular circumstances because the railroad was the plaintiff in state court. But the Court observed that, as a general matter, a state court action for judicial review of an administrative condemnation proceeding is “in its nature a civil action and subject to removal by the defendant to the United States District Court.” Id., at 578-579; see County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 195 (1959) (“Although holding that the respondent could not remove a state condemnation case to the Federal District Court on diversity grounds because he was the plaintiff in the state proceeding, the Court [in Stude] clearly recognized that the defendant in such a proceeding could remove in accordance with § 1441 and obtain a federal adjudication of the issues involved”). If anything, then, Stude indicates that the jurisdiction of federal district courts encompasses ICS’ claims for review of the Landmarks Commission’s decisions. Horton is to the same effect, holding that a District Court had jurisdiction under the diversity statute to review a state workers’ compensation award. 367 U. S., at 352. The bulk of the opinion addresses the central issue in the case, whether the suit satisfied the amount-in-eontroversy threshold for diversity jurisdiction. See id., at 352-354; id., at 355-363 (Clark, J., dissenting). But the plaintiff also alleged, based on Stude, that diversity jurisdiction was lacking because the action was an appeal from a state administrative order, to which the Court simply responded that, “[a]side from many other relevant distinctions which need not be pointed out,” the suit in fact was a “trial de novo” and not an appellate proceeding. 367 U. S., at 354-355. The Court did not purport to hold that the de novo standard was a precondition to federal jurisdiction. Any negative inference that might be drawn from that aspect of Horton, even assuming that the decision speaks to the scope of supplemental (and not diversity) jurisdiction, would be insufficient to trump the absence of indication in § 1367(a) that the nature of review bears on whether a claim is within a district court’s supplemental jurisdiction. After all, district courts routinely conduct deferential review pursuant to their original jurisdiction over federal questions, including on-the-record review of. federal administrative action. See Califano v. Sanders, 430 U. S. 99, 105-107 (1977). Nothing in § 1367(a) suggests that district eourts are without supplemental jurisdiction over claims seeking precisely the same brand of review of local administrative determinations. Cf. Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 206 (1982) (interpreting Individuals with Disabilities Education Act, 20 U. S. C. § 1415(e), which contemplates deferential review of state administrative action). The dissent disagrees with our conclusion that 28 U. S. C. § 1367(a) encompasses state law claims for on-the-record review of local administrative action, but it is unclear exactly why, for the dissent never directly challenges our application of that statute to ICS’ claims. In fact, the dissent only makes passing reference to the terms of § 1367(a), which, in our view, resolve the ease. In this light, the dissent’s candid misgivings about attempting to square its position with the text of the jurisdictional statutes, see post, at 176, 183-184, are understandable. And the failure to come to grips with the text of § 1367(a) explains the dissent’s repeated assumption, post, at 176, 177, 182, 185-186, that the jurisdictional analysis of diversity cases would be no different. But to decide that state law claims for on-the-record review of a local agency’s decision fall within the district courts’ “supplemental” jurisdiction under § 1367(a), does not answer the question, nor do we, whether those same claims, if brought alone, would substantiate the district courts’ “original” jurisdiction over diversity cases under §1332. Ultimately, the dissent never addresses this case as it is presented: a case containing federal questions within the meaning of §1331 and supplemental state law claims within the meaning of § 1367(a). Ill Of course, to say that the terms of § 1367(a) authorize the district courts to exercise supplemental jurisdiction over state law claims for on-the-record review of administrative decisions does not mean that the jurisdiction must be exercised in all cases. Our decisions have established that pendent jurisdiction “is a doctrine of discretion, not of plaintiff’s right,” Gibbs, 383 U. S., at 726, and that district courts can decline to exercise jurisdiction over pendent claims for a number of valid reasons, id., at 726-727. See also Cohill, 484 U. S., at 350 (“As articulated by Gibbs, the doctrine of pendent jurisdiction thus is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the maimer that most sensibly accommodates a range of concerns and values”). Accordingly, we have indicated that “district courts [should] deal with eases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine.” Id., at 357. The supplemental jurisdiction statute codifies these principles. After establishing that supplemental jurisdiction encompasses “other claims” in the same case or controversy as a claim within the district courts’ original jurisdiction, § 1367(a), the statute confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise: “(e) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— “(1) the claim raises a novel or complex issue of State law, “(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, “(3) the district court has dismissed all claims over which it has original jurisdiction, or “(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). Depending on a host of factors, then — including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims — district courts may decline to exercise jurisdiction over supplemental state law claims. The statute thereby reflects the -understanding that, when deciding whether to exercise supplemental jurisdiction, “a federal eourt should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.” Cohill, supra, at 350. In this case, the District Court decided that those interests would be best served by exercising jurisdiction over ICS’ state law claims. App. to Pet. for Cert. 45a—46a. In addition to their discretion under § 1867(e), district courts may be obligated not to decide state law claims (or to stay their adjudication) where one of the abstention doctrines articulated by this Court applies. Those doctrines embody the general notion that “federal courts may decline to exercise their jurisdiction, in otherwise exceptional circumstances, where denying a federal forum would clearly serve an important countervailing interest, for example where abstention is warranted by considerations of proper constitutional adjudication, regard for federal-state relations, or wise judicial administration.” Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 716 (1996) (citations and internal quotation marks omitted). We have recently outlined the various abstention principles, see ibid., and need not elaborate them here except to note that there may be situations in which a district court should abstain from reviewing local	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
PERRY EDUCATION ASSOCIATION v. PERRY LOCAL EDUCATORS’ ASSOCIATION et al. No. 81-896. Argued October 13, 1982 Decided February 23, 1983 White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, Powell, and Stevens, JJ., joined, post, p. 55. Robert H. Chanin argued the cause for appellant. With him on the briefs were Michael H. Gottesman, Robert M. Weinberg, and Richard J. Darko. Richard L. Zweig argued the cause for appellees. With him on the brief was Lawrence M. Reuben Edwin Vieira, Jr., filed a brief for the Public Service Research Council as amicus curiae urging affirmance. Solicitor General Lee filed a memorandum for the United States Postal Service as amicus curiae. Justice White delivered the opinion of the Court. Perry Education Association is the duly elected exclusive bargaining representative for the teachers of the Metropolitan School District of Perry Township, Ind. A collective-bargaining agreement with the Board of Education provided that Perry Education Association, but no other union, would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. The issue in this case is whether the denial of similar access to the Perry Local Educators’ Association, a rival teacher group, violates the First and Fourteenth Amendments. The Metropolitan School District of Perry Township, Ind., operates a public school system of 13 separate schools. Each school building contains a set of mailboxes for the teachers. Interschool delivery by school employees permits messages to be delivered rapidly to teachers in the District. The primary function of this internal mail system is to transmit official messages among the teachers and between the teachers and the school administration. In addition, teachers use the system to send personal messages, and individual school building principals have allowed delivery of messages from various private organizations. Prior to 1977, both the Perry Education Association (PEA) and the Perry Local Educators’ Association (PLEA) represented teachers in the School District and apparently had equal access to the interschool mail system. In 1977, PLEA challenged PEA’s status as de facto bargaining representative for the Perry Township teachers by filing an election petition with the Indiana Education Employment Relations Board (Board). PEA won the election and was certified as the exclusive representative, as provided by Indiana law. Ind. Code §20-7.5-1-2(1) (1982). The Board permits a school district to provide access to communication facilities to the union selected for the discharge of the exclusive representative duties of representing the bargaining unit and its individual members without having to provide equal access to rival unions. Following the election, PEA and the School District negotiated a labor contract in which the School Board gave PEA “access to teachers’ mailboxes in which to insert material” and the right to use the interschool mail delivery system to the extent that the School District incurred no extra expense by such use. The labor agreement noted that these access rights were being accorded to PEA “acting as the representative of the teachers” and went on to stipulate that these access rights shall not be granted to any other “school employee organization” — a term of art defined by Indiana law to mean “any organization which has school employees as members and one of whose primary purposes is representing school employees in dealing with their school employer.” The PEA contract with these provisions was renewed in 1980 and is presently in force. The exclusive-access policy applies only to use of the mailboxes and school mail system. PLEA is not prevented from using other school facilities to communicate with teachers. PLEA may post notices on school bulletin boards; may hold meetings on school property after school hours; and may, with approval of the building principals, make announcements on the public address system. Of course, PLEA also may communicate with teachers by word of mouth, telephone, or the United States mail. Moreover, under Indiana law, the preferential access of the bargaining agent may continue only while its status as exclusive representative is insulated from challenge. Ind. Code §20-7.5-l-10(c)(4) (1982). While a representation contest is in progress, unions must be afforded equal access to such communication facilities. PLEA and two of its members filed this action under 42 U. S. C. § 1983 against PEA and individual members of the Perry Township School Board. Plaintiffs contended that PEA’s preferential access to the internal mail system violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. They sought injunctive and declaratory relief and damages. Upon cross-motions for summary judgment, the District Court entered judgment for the defendants. Perry Local Educators’ Assn. v. Hohlt, IP 79-189-C (SD Ind., Feb. 25, 1980). The Court of Appeals for the Seventh Circuit reversed. Perry Local Educators’ Assn. v. Hohlt, 652 F. 2d 1286 (1981). The court held that once the School District “opens its internal mail system to PEA but denies it to PLEA, it violates both the Equal Protection Clause and the First Amendment.” Id., at 1290. It acknowledged that PEA had “legal duties to the teachers that PLEA does not have” but reasoned that “[wjithout an independent reason why equal access for other labor groups and individual teachers is undesirable, the special duties of the incumbent do not justify opening the system to the incumbent alone.” Id., at 1300. PEA now seeks review of this judgment by way of appeal. We postponed consideration of our jurisdiction to the hearing of the case on the merits. 454 U. S. 1140 (1982). I — I I — I We initially address the issue of our appellate jurisdiction over this case. PEA submits that its appeal is proper under 28 U. S. C. § 1254(2), which grants us appellate jurisdiction over cases in the federal courts of appeals in which a state statute has been held repugnant to the Constitution, treaties, or laws of the United States. We disagree. No state statute or other legislative action has been invalidated by the Court of Appeals. The Court of Appeals has held only that certain sections of the collective-bargaining agreement entered into by the School District and PEA are constitutionally invalid; the Indiana statute authorizing such agreements is left untouched. PEA suggests, however, that because a collective-bargaining contract has “continuing force and [is] intended to be observed and applied in the future,” it is in essence a legislative act, and, therefore a state statute within the meaning of § 1254(2). King Manufacturing Co. v. City Council of Augusta, 277 U. S. 100, 104 (1928). In support of its position, PEA points to our decisions treating local ordinances and school board orders as state statutes for § 1254(2) purposes, Doran v. Salem Inn, Inc., 422 U. S. 922, 927, n. 2 (1975); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948); Hamilton v. Regents of Univ. of Cal., 293 U. S. 245, 257-258 (1934). In these cases, however, legislative action was involved — the unilateral promulgation of a rule with continuing legal effect. Unlike a local ordinance or even a school board rule, a collective-bargaining agreement is not unilaterally adopted by a lawmaking body; it emerges from negotiation and requires the approval of both parties to the agreement. Not every government action which has the effect of law is legislative action. We have previously emphasized that statutes authorizing appeals are to be strictly construed, Fornaris v. Ridge Tool Co., 400 U. S. 41, 42, n. 1 (1970), and in light of that policy, we do not find that § 1254(2) extends to cover this case. We therefore dismiss the appeal for want of jurisdiction. See, e. g., Lockwood v. Jefferson Area Teachers Assn., 459 U. S. 804 (1982) (appeal dismissed for want of jurisdiction and certiorari denied). Nevertheless, the decision below is subject to our review by writ of certiorari. 28 U. S. C. § 2103; Palmore v. United States, 411 U. S. 389, 396 (1973). The constitutional issues presented are important and the decision below conflicts with the judgment of other federal and state courts. Therefore, regarding PEA’s jurisdictional statement as a petition for a writ of certiorari, we grant certiorari. ) — i H — I HH The primary question presented is whether the First Amendment, applicable to the States by virtue of the Fourteenth Amendment, is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union. There is no question that constitutional interests are implicated by denying PLEA use of the interschool mail system. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines School District, 393 U. S. 503, 506 (1969); Healy v. James, 408 U. S. 169 (1972). The First Amendment’s guarantee of free speech applies to teacher’s mailboxes as surely as it does elsewhere within the school, Tinker v. Des Moines School District, supra, and on sidewalks outside, Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). But this is not to say that the First Amendment requires equivalent access to all parts of a school building in which some form of communicative activity occurs. “[N]owhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for... unlimited expressive purposes.” Grayned v. City of Rockford, 408 U. S. 104, 117-118 (1972). The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue. A In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U. S. 496, 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U. S. 455, 461 (1980). The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 132 (1981); Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 535-536 (1980); Grayned v. City of Rockford, supra, at 115; Cantwell v. Connecticut, 310 U. S. 296 (1940); Schneider v. State, 308 U. S. 147 (1939). A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent, 454 U. S. 263 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm’n, 429 U. S. 167 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975) (municipal theater). Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widrnar v. Vincent, supra, at 269-270. Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Service v. Council of Greenburgh Civic Assns., supra, at 129. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. 453 U. S., at 131, n. 7. As we have stated on several occasions, “ ‘ “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” ’ ” Id., at 129-130, quoting Greer v. Spock, 424 U. S. 828, 836 (1976), in turn quoting Adderley v. Florida, 385 U. S. 39, 47 (1966). The school mail facilities at issue here fall within this third category. The Court of Appeals recognized that Perry School District’s interschool mail system is not a traditional public forum: “We do not hold that a school’s internal mail system is a public forum in the sense that a school board may not close it to all but official business if it chooses.” 652 F. 2d, at 1301. On this point the parties agree. Nor do the parties dispute that, as the District Court observed, the “normal and intended function [of the school mail facilities] is to facilitate internal communication of school-related matters to the teachers.” Perry Local Educators’ Assn. v. Hohlt, IP 79-189-C (SD Ind., Feb. 25, 1980), p. 4. The internal mail system, at least by policy, is not held open to the general public. It is instead PLEA’s position that the school mail facilities have become a “limited public forum” from which it may not be excluded because of the periodic use of the system by private non-school-connected groups, and PLEA’s own unrestricted access to the system prior to PEA’s certification as exclusive representative. Neither of these arguments is persuasive. The use of the internal school mail by groups not affiliated with the schools is no doubt a relevant consideration. If by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created. This, however, is not the case. As the case comes before us, there is no indication in the record that the school mailboxes and interschool delivery system are open for use by the general public. Permission to use the system to communicate with teachers must be secured from the individual building principal. There is no court finding or evidence in the record which demonstrates that this permission has been granted as a matter of course to all who seek to distribute material. We can only conclude that the schools do allow some outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations to use the facilities. This type of selective access does not transform government property into a public forum. In Greer v. Spock, supra, at 838, n. 10, the fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not convert the military base into a public forum. And in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974) (opinion of Blackmun, J.), a plurality of the Court concluded that a city transit system’s rental of space in its vehicles for commercial advertising did not require it to accept partisan political advertising. Moreover, even if we assume that by granting access to the Cub Scouts, YMCA’s, and parochial schools, the School District has created a “limited” public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys’ club, and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment. PLEA also points to its ability to use the school mailboxes and delivery system on an equal footing with PEA prior to the collective-bargaining agreement signed in 1978. Its argument appears to be that the access policy in effect at that time converted the school mail facilities into a limited public forum generally open for use by employee organizations, and that once this occurred, exclusions of employee organizations thereafter must be judged by the constitutional standard applicable to public forums. The fallacy in the argument is that it is not the forum, but PLEA itself, which has changed. Prior to 1977, there was no exclusive representative for the Perry School District teachers. PEA and PLEA each represented its own members. Therefore the School District’s policy of allowing both organizations to use the school mail facilities simply reflected the fact that both unions represented the teachers and had legitimate reasons for use of the system. PLEA’s previous access was consistent with the School District’s preservation of the facilities for school-related business, and did not constitute creation of a public forum in any broader sense. Because the school mail system is not a public forum, the School District had no “constitutional obligation per se to let any organization use the school mail boxes.” Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F. 2d 471, 481 (CA2 1976). In the Court of Appeals’ view, however, the access policy adopted by the Perry schools favors a particular viewpoint, that of PEA, on labor relations, and consequently must be strictly scrutinized regardless of whether a public forum is involved. There is, however, no indication that the School Board intended to discourage one viewpoint and advance another. We believe it is more accurate to characterize the access policy as based on the status of the respective unions rather than their views. Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves. B The differential access provided PEA and PLEA is reasonable because it is wholly consistent with the District’s legitimate interest in “ ‘ “preserving] the property... for the use to which it is lawfully dedicated.’”” United States Postal Service, 453 U. S., at 129-130. Use of school mail facilities enables PEA to perform effectively its obligations as exclusive representative of all Perry Township teachers. Conversely, PLEA does not have any official responsibility in connection with the School District and need not be entitled to the same rights of access to school mailboxes. We observe that providing exclusive access to recognized bargaining representatives is a permissible labor practice in the public sector. We have previously noted that the “designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones.” Abood v. Detroit Bd. of Ed., 431 U. S. 209, 221 (1977). Moreover, exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools. The policy “serves to prevent the District’s schools from becoming a battlefield for inter-union squabbles.” The Court of Appeals accorded little or no weight to PEA’s special responsibilities. In its view these responsibilities, while justifying PEA’s access, did not justify denying equal access to PLEA. The Court of Appeals would have been correct if a public forum were involved here. But the internal mail system is not a public forum. As we have already stressed, when government property is not dedicated to open communication the government may — without further justification — restrict use to those who participate in the forum’s official business. Finally, the reasonableness of the limitations on PLEA’s access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. These means range from bulletin boards to meeting facilities to the United States mail. During election periods, PLEA is assured of equal access to all modes of communication. There is no showing here that PLEA’s ability to communicate with teachers is seriously impinged by the restricted access to the internal mail system. The variety and type of alternative modes of access present here compare favorably with those in other nonpublic forum cases where we have upheld restrictions on access. See, e. g., Greer v. Spook, 424 U. S., at 839 (servicemen free to attend political rallies off base); Pell v. Procunier, 417 U. S. 817, 827-828 (1974) (prison inmates may communicate with media by mail and through visitors). IV The Court of Appeals also held that the differential access provided the rival unions constituted impermissible content discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. We have rejected this contention when cast as a First Amendment argument, and it fares no better in equal protection garb. As we have explained above, PLEA did not have a First Amendment or other right of access to the interschool mail system. The grant of such access to PEA, therefore, does not burden a fundamental right of PLEA. Thus, the decision to grant such privileges to PEA need not be tested by the strict scrutiny applied when government action impinges upon a fundamental right protected by the Constitution. See San Antonio Independent School Districts. Rodriguez, 411 U. S. 1, 17 (1973). The School District’s policy need only rationally further a legitimate state purpose. That purpose is clearly found in the special responsibilities of an exclusive bargaining representative. See supra, at 51-52. The Seventh Circuit and PLEA rely on Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), and Carey v. Brown, 447 U. S. 455 (1980). In Mosley and Carey, we struck down prohibitions on peaceful picketing in a public forum. In Mosley, the city of Chicago permitted peaceful picketing on the subject of a school’s labor-management dispute, but prohibited other picketing in the immediate vicinity of the school. In Carey, the challenged state statute barred all picketing of residences and dwellings except the peaceful picketing of a place of employment involved in a labor dispute. In both cases, we found the distinction between classes of speech violative of the Equal Protection Clause. The key to those decisions, however, was the presence of a public forum. In a public forum, by definition, all parties have a constitutional right of access and the State must demonstrate compelling reasons for restricting access to a single class of speakers, a single viewpoint, or a single subject. When speakers and subjects are similarly situated, the State may not pick and choose. Conversely on government property that has not been made a public forum, not all speech is equally situated, and the State may draw distinctions which relate to the special purpose for which the property is used. As we have explained above, for a school mail facility, the difference in status between the exclusive bargaining representative and its rival is such a distinction. Y The Court of Appeals invalidated the limited privileges PEA negotiated as the bargaining voice of the Perry Township teachers by misapplying our cases that have dealt with the rights of free expression on streets, parks, and other fora generally open for assembly and debate. Virtually every other court to consider this type of exclusive-access policy has upheld it as constitutional, see n. 6, supra, and today, so do we. The judgment of the Court of Appeals is Reversed. The United States Postal Service, in a submission as amicus curiae, suggests that the interschool delivery of material to teachers at various schools in the District violates the Private Express statutes, 18 U. S. C. §§ 1693-1699 and 39 U. S. C. §§ 601-606, which generally prohibit the carriage of letters over postal routes without payment of postage. We agree with the Postal Service that this question does not directly bear on the issues before the Court in this case. Accordingly, we express no opinion on whether the mail delivery practices involved here comply with the Private Express statutes or other Postal Service regulations. Local parochial schools, church groups, YMCA’s, and Cub Scout units have used the system. The record does not indicate whether any requests for use have been denied, nor does it reveal whether permission must separately be sought for every message that a group wishes delivered to the teachers. See Perry Local Educators’ Assn. v. Hohlt, 652 F. 2d 1286, 1291, and n. 13 (CA7 1981). It is an unfair labor practice under state law for a school employer to “dominate, interfere or assist in the formation or administration of any school employee organization or contribute financial or other support to it.” Ind. Code § 20-7.5-l-7(a)(2) (1982). The Indiana Education Employment Relations Board has held that a school employer may exclude a minority union from organizational activities which take place on school property and may deny the rival union “nearly all organizational conveniences.” Pike Independent Professional Educators v. Metropolitan School Dist. of Pike Township, No. U-76-16-5350 (Oct. 22, 1976) (holding that denying rival union use of a school building for meetings was not unfair labor practice, but that denying union use of school bulletin boards was unfair labor practice). Ind. Code § 20-7.5-l-2(k) (1982). PEA’s reliance upon Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), is misplaced. In Abood, appellate jurisdiction under 28 U. S. C. § 1257(2) was proper because the constitutionality of the state statute authorizing the negotiation of agency shop agreements was at issue. See Juris. Statement in Abood v. Detroit Bd. of Ed., O. T. 1976, No. 75-1153, p. 5. Constitutional objections to similar access policies have been rejected by all but one other federal or state court to consider the issue. See Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F. 2d 471 (CA2 1976); Memphis American Federation of Teachers Local 2032 v. Board of Ed., 534 F. 2d 699 (CA6 1976); Teachers Local 3724 v. North St. Francois County School District, 103 LRRM 2865 (ED Mo. 1979); Haukedahl v. School District No. 108, No. 75-C-3641 (ND Ill., May 14, 1976); Federation of Delaware Teachers v. De La Warr Board of Ed., 335 F. Supp. 385 (Del. 1971); Local 858, American Federation of Teachers v. School District No. 1, 314 F. Supp. 1069 (Colo. 1970); Maryvale Educators Assn. v. Newman, 70 App. Div. 2d 758, 416 N. Y. S. 2d 876, appeal denied, 48 N. Y. 2d 605, 424 N. Y. S. 2d 1025 (1979); Geiger v. Duval County School Board, 357 So. 2d 442 (Fla. App. 1978); Clark Classroom Teachers Assn. v. Clark County School District, 91 Nev. 143, 532 P. 2d 1032 (1975) (per curiam). The only case holding unconstitutional a school district’s refusal to grant a minority union access to teacher’s mailboxes or other facilities while granting such privileges to a majority union is Teachers Local 399 v. Michigan City Area Schools, No. 72-S-94 (ND Ind., Jan. 24, 1973), vacated on other grounds, 499 F. 2d 115 (CA7 1974). A public forum may be created for a limited purpose such as use by certain groups, e. g., Widmar v. Vincent (student groups), or for the discussion of certain subjects, e. g., City of Madison Joint School District v. Wisconsin Public Employment Relations Comm’n (school board business). See Brief for Appellees 9 and Tr. of Oral Arg. 41. Justice BRENNAN minimizes the importance of public forum analysis and all but rejects Greer v. Spock, 424 U. S. 828 (1976); Lehman v. City of Shaker Heights, 418 U. S. 298 (1974); and Jones v. North Carolina Prisoners’ Union, 433 U. S. 119 (1977), in each of which, of course, he was in dissent. It will not do, however, to put aside the Court’s decisions holding that not all public property is a public forum, or to dismiss Greer, Lehman, and Jones as decisions of limited scope involving “unusual forums.” In United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 129 (1981), the Court rejected this	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WYOMING et al. No. 81-554. Argued October 5, 1982 Decided March 2, 1983 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 244. Burger, C. J., filed a dissenting opinion, in which Powell, Rehnquist, and O’Connor, JJ., joined, post, p. 251. Powell, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 265. Solicitor General Lee argued the cause for appellant. With him on the briefs were Deputy Solicitor General Wallace, George W. Jones, Michael J. Connolly, Philip B. Sklover, and Vella M. Fink. Bruce A. Salzburg, Senior Assistant Attorney General of Wyoming, argued the cause for appellees. With him on the briefs was Steven F. Freudenthal, Attorney General. Steven J. Cole and Richard Kirschner filed a brief for the American Federation of State, County and Municipal Employees, AFL-CIO, as ami-cus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Charles A. Graddick, Attorney General of Alabama, and AlgertS. Agricola, Jr., Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General, Michael J. Bowers, Attorney General of Georgia, and Gary R. Hurst, Assistant Attorney General, Tany S. Hong, Attorney General of Hawaii, Tyrone C. Fahner, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, and James F. Schmidt, Deputy Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Kendall L. Vick, Assistant Attorney General, Frank J. Kelly, Attorney General of Michigan, and Susan Peck Iannotti, Assistant Attorney General, John Ashcroft, Attorney General of Missouri, Louis J. Caruso, Solicitor General, and Preston Dean, Assistant Attorney General, Michael J. Greely, Attorney General of Montana, and F. Woodside Wright, Special Assistant Attorney General, Paul L. Douglas, Attorney General of Nebraska, and Bernard L. Packett, Assistant Attorney General, William J. Brown, Attorney General of Ohio, and James R. Rishel, Rufus L. Edmisten, Attorney General of North Carolina, and Douglas A. Johnston, Assistant Attorney General, LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Debra K. Wallet, Deputy Attorney General, William M. Leech, Jr., Attorney General of Tennessee, and Michael E. Terry, Deputy Attorney General, Mark White, Attorney General of Texas, and William 0. Goodman, Assistant Attorney General, David L. Wilkinson, Attorney General of Utah, and Stephen G. Schwendiman, Assistant Attorney General, John J. Eas-ton, Jr., Attorney General of Vermont, and Denise Johnson, Assistant Attorney General, and Jack Avery, Attorney General of Guam; for the State of California et al. by George Deukmejian, Attorney General of California, Willard A. Shank, Chief Assistant Attorney General, Richard D. Martland, Assistant Attorney General, and Mary C. Michel, Deputy Attorney General, and Charles A. Graddick, Attorney General of Alabama, and Algert S. Agricola, Jr., Assistant Attorney General; for the County of Marathon, Wisconsin, et al. by Charles C. Mulcahy, Michael R. Wherry, and William J. Mulligan; for the City of Baltimore by Benjamin L. Brown and Ambrose T. Hartman; and for the National Institute of Municipal Law Officers by James B. Brennan, Henry W. Underhill, Jr., Benjamin L. Brown, J. Lamar Shelley, Roy D. Bates, Roger F. Cutler, AlanJ. Davis, John Dekker, LeeE. Holt, George F. Knox, Jr., Walter M. Powell, William H. Taube, John W. Witt, Max P. Zall, Conard B. Mat-tox, Jr., and Charles S. Rhyne. Justice Brennan delivered the opinion of the Court. Under the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. (1976 ed. and Supp. V) (ADEA or Act), it is unlawful for an employer to discriminate against any employee or potential employee on the basis of age, except “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” The question presented in this case is whether Congress acted constitutionally when, in 1974, it extended the definition of “employer” under § 11(b) of the Act to include state and local governments. The United States District Court for the District of Wyoming, in an enforcement action brought by the Equal Employment Opportunity Commission (EEOC or Commission), held that, at least as applied to certain classes of state workers, the extension was unconstitutional. 514 F. Supp. 595 (1981). The Commission filed a direct appeal under 28 U. S. C. §1252, and we noted probable jurisdiction. 454 U. S. 1140 (1982). We now reverse. M Efforts in Congress to prohibit arbitrary age discrimination date back at least to the 1950’s. During floor debate over what was to become Title VII of the Civil Rights Act of 1964, amendments were offered in both the House and the Senate to ban discrimination on the basis of age as well as race, color, religion, sex, and national origin. These amendments were opposed at least in part on the basis that Congress did not yet have enough information to make a considered judgment about the nature of age discrimination, and each was ultimately defeated. 110 Cong. Rec. 2596-2599, 9911-9913, 13490-13492 (1964); EEOC, Legislative History of the Age Discrimination in Employment Act 5-14 (1981) (hereinafter Legislative History). Title VII did, however, include a provision, § 715, 78 Stat. 265 (since superseded by § 10 of the Equal Employment Opportunity Act of 1972, 86 Stat. Ill), which directed the Secretary of Labor to “make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected,” and to report the results of that study to Congress. That report was transmitted approximately one year later. Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment (1965), Legislative History 16-41. In 1966, Congress directed the Secretary of Labor to submit specific legislative proposals for prohibiting age discrimination. Fair Labor Standards Amendments of 1966, § 606, 80 Stat. 845. The Secretary transmitted a draft bill in early 1967, see 113 Cong. Rec. 1377 (1967), and the President, in a message to Congress on older Americans, recommended its enactment and expressed serious concern about the problem of age discrimination, see Special Message to the Congress Proposing Programs for Older Americans, 1 Public Papers of the Presidents, Lyndon B. Johnson, 1967, pp. 32, 37 (1968). Congress undertook further study of its own, and Committees in both the House and the Senate conducted detailed hearings on the proposed legislation. See Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967); Age Discrimination in Employment: Hearings on H. R. 3651 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess. (1967); see also Retirement and the Individual: Hearings before the Subcommittee on Retirement and the Individual of the Senate Special Committee on Aging, 90th Cong., 1st Sess. (1967). The report of the Secretary of Labor, whose findings were confirmed throughout the extensive factfinding undertaken by the Executive Branch and Congress, came to the following basic conclusions: (1) Many employers adopted specific age limitations in those States that had not prohibited them by their own antidiscrimination laws, although many other employers were able to operate successfully without them. (2) In the aggregate, these age limitations had a marked effect upon the employment of older workers. (3) Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact, and was often defended on grounds different from its actual causes. (4) Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers. (5) Finally, arbitrary age discrimination was profoundly harmful in at least two ways. First, it deprived the national economy of the productive labor of millions of individuals and imposed on the governmental treasury substantially increased costs in unemployment insurance and federal Social Security benefits. Second, it inflicted on individual workers the economic and psychological injury accompanying the loss of the opportunity to engage in productive and satisfying occupations. The product of the process of factfinding and deliberation formally begun in 1964 was the Age Discrimination in Employment Act of 1967. The preamble to the Act emphasized both the individual and social costs of age discrimination. The provisions of the Act as relevant here prohibited various forms of age discrimination in employment, including the discharge of workers on the basis of their age. §4(a), 29 U. S. C. § 623(a). The protection of the Act was limited, however, to workers between the ages of 40 and 65, § 12(a), 29 U. S. C. § 631, raised to age 70 in 1978, Age Discrimination in Employment Act Amendments of 1978, § 3(a), 92 Stat. 189. Moreover, in order to insure that employers were permitted to use neutral criteria not directly dependant on age, and in recognition of the fact that even criteria that are based on age are occasionally justified, the Act provided that certain otherwise prohibited employment practices would not be unlawful “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” § 4(f)(1), 29 II. S. C. § 623(f)(1). The ADEA, as originally passed in 1967, did not apply to the Federal Government, to the States or their political subdivisions, or to employers with fewer thafi 25 employees. In a Report issued in 1973, a Senate Committee found this gap in coverage to be serious, and commented that “[t]here is... evidence that, like the corporate world, government managers also create an environment where young is somehow better than old.” Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973), Legislative History 231. In 1974, Congress extended the substantive prohibitions of the Act to employers having at least 20 workers, and to the Federal and State Governments. Prior to the District Court decision in this case, every federal court that considered the question upheld the constitutionality of the 1974 extension of the Age Discrimination in Employment Act to state and local workers as an exercise of Congress’ power under either the Commerce Clause or § 5 of the Fourteenth Amendment. This case arose out of the involuntary retirement at age 55 of Bill Crump, a District Game Division supervisor for the Wyoming Game and Fish Department. Crump’s dismissal was based on a Wyoming statute that conditions further employment for Game and Fish Wardens who reach the age of 55 on “the approval of [their] employer.” Crump filed a complaint with the EEOC, alleging that the Game and Fish Department had violated the Age Discrimination in Employment Act. After conciliation efforts between the Commission and the Game and Fish Department failed, the Commission filed suit in the District Court for the District of Wyoming against the State and various of its officials seeking declaratory and injunctive relief, backpay, and liquidated damages on behalf of Mr. Crump and others similarly situated. The District Court, upon a motion by the defendants, dismissed the suit. It held that the Age Discrimination in Employment Act violated the doctrine of Tenth Amendment immunity articulated in National League of Cities v. Usery, 426 U. S. 833 (1976), at least insofar as it regulated Wyoming’s employment relationship with its game wardens and other law enforcement officials. 514 F. Supp., at 600. The District Court also held, citing Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), that the application of the ADEA to the States could not be justified as an exercise of Congress’ power under §5 of the Fourteenth Amendment because Congress did not explicitly state that it invoked that power in passing the 1974 amendments. 514 F. Supp., at 600. Ill The appellees have not claimed either in the District Court or in this Court that Congress exceeded the scope of its affirmative grant of power under the Commerce Clause in enacting the ADEA. See generally National League of Cities v. Usery, supra, at 840-841; Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 243-244 (1964). Rather, the District Court held and appellees argue that, at least with respect to state game wardens, application of the ADEA to the States is precluded by virtue of external constraints imposed on Congress’ commerce powers by the Tenth Amendment. A National League of Cities v. Usery struck down Congress’ attempt to extend the wage and hour provisions of the Fair Labor Standards Act to state and local governments. National League of Cities was grounded on a concern that the imposition of certain federal regulations on state governments might, if left unchecked, “allow ‘the National Government [to] devour the essentials of state sovereignty,”’ 426 U. S., at 855 (quoting Maryland v. Wirtz, 392 U. S. 183, 205 (1968) (Douglas, J., dissenting)). It therefore drew from the Tenth Amendment an “affirmative limitation on the exercise of [congressional power under the Commerce Clause] akin to other commerce power affirmative limitations contained in the Constitution.” 426 U. S., at 841. The principle of immunity articulated in National League of Cities is a functional doctrine, however, whose ultimate purpose is not to create a sacred province of state autonomy, but to ensure that the unique benefits of a federal system in which the States enjoy a “ ‘separate and independent existence,’ ” id., at 845 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)), not be lost through undue federal interference in certain core State functions. See FERC v. Mississippi, 456 U. S. 742, 765-766 (1982); United Transportation Union v. Long Island R. Co., 455 U. S. 678, 686-687 (1982); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 286-288 (1981). Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, summarized the hurdles that confront any claim that a state or local governmental unit should be immune from an otherwise legitimate exercise of the federal power to regulate commerce: “[I]n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute^] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’” 452 U. S., at 287-288 (citations omitted; emphasis in original). Moreover, “Demonstrating that these three requirements are met does not... guarantee that a Tenth Amendment challenge to congressional commerce power action will succeed. There are situations in which the nature of the federal interest advanced may be such that it justifies state submission.” Id., at 288, n. 29 (citations omitted). See also United Transportation Union v. Long Island R. Co., supra, at 684, and n. 9. The first requirement — that the challenged federal statute regulate the “States as States”— is plainly met in this case. The second requirement — that the federal statute address an “undoubted attribute of state sovereignty” — poses significantly more difficulties. We need not definitively resolve this issue, however, nor do we have any occasion to reach the final balancing step of the inquiry described in Hodel, for we are convinced that, even if Wyoming’s decision to impose forced retirement on its game wardens does involve the exercise of an attribute of state sovereignty, the Age Discrimination in Employment Act does not “directly impair” the State’s ability to “structure integral operations in areas of traditional governmental functions.” B The management of state parks is clearly a traditional state function. National League of Cities, 426 U. S., at 851. As we have already emphasized, however, the purpose of the doctrine of immunity articulated in National League of Cities was to protect States from federal intrusions that might threaten their “separate and independent existence.” Ibid. Our decision as to whether the federal law at issue here directly impairs the States’ ability to structure their integral operations must therefore depend, as it did in National League of Cities itself, on considerations of degree. See id., at 845, 852; FERC v. Mississippi, 456 U. S., at 769-770. We conclude that the degree of federal intrusion in this case is sufficiently less serious than it was in National League of Cities so as to make it unnecessary for us to override Congress’ express choice to extend its regulatory authority to the States. In this case, appellees claim no substantial stake in their retirement policy other than “assuring] the physical preparedness of Wyoming game wardens to perform their duties.” Brief for Appellees 18. Under the ADEA, however, the State may still, at the very least, assess the fitness of its game wardens and dismiss those wardens whom it reasonably finds to be unfit. Put another way, the Act requires the State to achieve its goals in a more individualized and careful manner than would otherwise be the case, but it does not require the State to abandon those goals, or to abandon the public policy decisions underlying them. FERC v. Mississippi, supra, at 771; cf. n. 11, supra. Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a “bona fide occupational qualification” for the job of game warden. See supra, at 232-233. Thus, in distinct contrast to the situation in National League of Cities, supra, at 848, even the State’s discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard. Finally, the Court’s concern in National League of Cities was not only with the effect of the federal regulatory scheme on the particular decisions it was purporting to regulate, but also with the potential impact of that scheme on the States’ ability to structure operations and set priorities over a wide range of decisions. 426 U. S., at 849-850. Indeed, National League of Cities spelled out in some detail how application of the federal wage and hour statute to the States threatened a virtual chain reaction of substantial and almost certainly unintended consequential effects on state decisionmaking. Id., at 846-852. Nothing in this case, however, portends anything like the same wide-ranging and profound threat to the structure of state governance. The most tangible consequential effect identified in National League of Cities was financial: forcing the States to pay their workers a minimum wage and an overtime rate would leave them with less money for other vital state programs. The test of such financial effect as drawn in National League of Cities does not depend, however, on “particularized assessments of actual impact,” which may vary from State to State and time to time, but on a more generalized inquiry, essentially legal rather than factual, into the direct and obvious effect of the federal legislation on the ability of the States to allocate their resources. Id., at 851-852; see Hodel, 452 U. S., at 292, n. 33. In this case, we cannot conclude from the nature of the ADEA that it will have either a direct or an obvious negative effect on state finances. Older workers with seniority may tend to get paid more than younger workers without seniority, and may by their continued employment accrue increased benefits when they do retire. But these increased costs, even if they were not largely speculative in their own right, might very well be outweighed by a number of other factors: Those same older workers, as long as they remain employed, will not have to be paid any pension benefits at all, and will continue to contribute to the pension fund. And, when they do retire, they will likely, as an actuarial matter, receive benefits for fewer years than workers who retire early. Admittedly, as some of the amici point out, the costs of certain state health and other benefit plans would increase if they were automatically extended to older workers now forced to retire at an early age. But Congress, in passing the ADEA, included a provision specifically disclaiming a construction of the Act which would require that the health and similar benefits received by older workers be in all respects identical to those received by younger workers. ADEA § 4(f)(2), 29 U. S. C. § 623(f)(2) (1976 ed. and Supp. V). The second consequential effect identified in National League of Cities was on the States’ ability to use their employment relationship with their citizens as a tool for pursuing social and economic policies beyond their immediate managerial goals. See, e. g., 426 U. S., at 848 (offering jobs at below the minimum wage to persons who do not possess “minimum employment requirements”). Appellees, however, have claimed no such purposes for Wyoming’s involuntary retirement statute. Moreover, whatever broader social or economic purposes could be imagined for this particular Wyoming statute would not, we are convinced, bring with them either the breadth or the importance of the state policies identified in National League of Cities. > The extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress’ powers under the Commerce Clause. We need not decide whether it could also be upheld as an exercise of Congress’ powers under §5 of the Fourteenth Amendment. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. See infra, at 231-233. See Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 23 (1967) (statement of Sen. Javits); Note, 47 S. Cal. L. Rev. 1311, 1325 (1974). “(a) The Congress hereby finds and declares that— “(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs; “(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; “(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave; “(4) the existence in industries affecting commerce of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce. “(b) It is therefore the purpose of this Act to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” §2, 29 U. S. C. §621. Section 4(a) of the Act, 29 U. S. C. § 623(a), provides: “It shall be unlawful for an employer — “(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; “(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or “(3) to reduce the wage rate of any employee in order to comply with this Act.” The Act has roughly parallel provisions covering employment agencies and labor organizations. §§ 4(b), (c), 29 U. S. C. §§ 623(b), (c). In addition, it prohibits employers, employment agencies, and labor organizations from retaliating against persons who seek to enforce the Act, § 4(d), 29 U. S. C. § 623(d), and from publishing certain types of discriminatory employment notices, § 4(e), 29 U. S. C. § 623(e). Congress extended the Act to cover state and local governments by-amending the definition of “employer” under § 11(b) of the Act, 29 U. S. C. § 630(b). (At the same time, Congress amended the definition of “employee” under § 11(f) of the Act, 29 U. S. C. § 630(f), to exclude state and local elected officials and certain non-civil-service appointed officials.) It extended the Act to cover federal workers by enacting a separate provision, § 15, 29 U. S. C. § 633a (1976 ed. and Supp. V), which created an independent enforcement mechanism under the jurisdiction of the Equal Employment Opportunity Commission. In 1978, at the same time that Congress raised the upper bound of the Act’s protection for state, local, and private employees from age 65 to age 70, it removed the cap entirely for federal workers. Age Discrimination in Employment Act Amendments of 1978, § 3(a), 92 Stat. 189, 29 U. S. C. § 631(b) (1976 ed. and Supp. V). E. g., Arritt v. Grisett, 567 F. 2d 1267, 1269-1270 (CA4 1977); Carpenter v. Pennsylvania Liquor Control Bd., 508 F. Supp. 148 (ED Pa. 1981); EEOC v. Pennsylvania Liquor Control Bd., 503 F. Supp. 1051, 1052-1053 (MD Pa. 1980); Marshall v. Delaware River & Bay Auth., 471 F. Supp. 886, 891-892 (Del. 1979); EEOC v. Florissant Valley Fire Protection Dist., 21 FEP Cases 973, 21 EPD ¶ 30,520 (ED Mo. 1979); Remmick v. Barnes County, 435 F. Supp. 914 (ND 1977); Aaron v. Davis, 424 F. Supp. 1238, 1239-1241 (ED Ark. 1976); Usery v. Board of Education of Salt Lake City, 421 F. Supp. 718 (Utah 1976). Since the District Court decision in this case, two other District Court opinions have followed its lead, Campbell v. Connelie, 542 F. Supp. 275, 280 (NDNY 1982); Taylor v. Montana Department of Fish & Game, 523 F. Supp. 514, 515 (Mont. 1981), but at least two Court of Appeals and eight District Court opinions have declined to do so, see EEOC v. County of Calumet, 686 F. 2d 1249, 1251-1253 (CA7 1982); EEOC v. Elrod, 674 F. 2d 601, 603-612 (CA7 1982); McCroan v. Bailey, 543 F. Supp. 1201, 1205-1207 (SD Ga. 1982); Kenny v. Valley County School District, 543 F. Supp. 1194, 1196-1199 (Mont. 1982); EEOC v. Minneapolis, 537 F. Supp. 750, 756 (Minn. 1982); Bleakley v. Jekyll Island — State Park Auth., 536 F. Supp. 236, 240 (SD Ga. 1982); EEOC v. County of Los Angeles, 531F. Supp. 122, 124 (CD Cal. 1982); EEOC v. County of Los Angeles, 526 F. Supp. 1135, 1137-1138 (CD Cal. 1981); Adams v. James, 526 F. Supp. 80, 84 (MD Ala. 1981); Johnson v. Mayor of Baltimore, 515 F. Supp. 1287, 1292 (Md. 1981). Section 31-3-107 of the Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, Wyo. Stat. § 31-3-107 (1977), provides that “[a]n employee may continue in service on a year-to-year basis after age... fifty-five (55), with the approval of the employer and under conditions as the employer may prescribe.” The provision also provides for	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 31 ]	sc_adminaction
ATTORNEY GENERAL OF NEW YORK v. SOTO-LOPEZ et al. No. 84-1803. Argued January 15, 1986 Decided June 17, 1986 Brennan, J., announced the judgment of the Court and delivered an opinion, in which Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., post, p. 912, and White, J., post, p. 916, filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion, post, p. 916. O’Connor, J., filed a dissenting opinion, in which Rehnquist and Stevens, JJ., joined, post, p. 918. Robert Hermann, Solicitor General of New York, argued the cause for appellant. With him on the brief were Robert Abrams, Attorney General, pro se, 0. Peter Sherwood, Deputy Solicitor General, and Christopher Keith Hall, Assistant Attorney General. Kenneth Kimerling argued the cause for appellees. With him on the brief was Juan Cartagena. M. Carolyn Cox and Barton F. Stichman filed a brief for Vietnam Veterans of America as amicus curiae urging affirmance. Justice Brennan announced the judgment of the Court and delivered an opinion, in which Justice Marshat,t,, Justice Blackmun, and Justice Powell join. The question presented by this appeal is whether a preference in civil service employment opportunities offered by the State of New York solely to resident veterans who lived in the State at the time they entered military service violates the constitutional rights of resident veterans who lived outside the State when they entered military service. I The State of New York, through its Constitution, N. Y. Const., Art. V, §6, and its Civil Service Law, N. Y. Civ. Serv. Law §85 (McKinney 1983 and Supp. 1986), grants a civil service employment preference, in the form of points added to examination scores, to New York residents who are honorably discharged veterans of the United States Armed Forces, who served during time of war, and who were residents of New York when they entered military service. This preference may be exercised only once, either for original hiring or for one promotion. N. Y. Const., Art. V, §6. Appellees, Eduardo Soto-Lopez and Eliezer Baez-Hernandez, are veterans of the United States Army and long-time residents of New York. Both men claim to have met all the eligibility criteria for the New York State civil service preference except New York residence when they entered the Army. Both Soto-Lopez and Baez-Hernandez passed New York City civil service examinations, but were denied the veterans’ preference by the New York City Civil Service Commission because they were residents of Puerto Rico at the time they joined the military. Appellees sued the city in Federal District Court, alleging that the requirement of residence when they joined the military violated the Equal Protection Clause of the Fourteenth Amendment and the constitutionally protected right to travel. The Attorney General of the State of New York intervened as a defendant. The District Court dismissed appellees’ complaint, holding that this Court’s summary affirmance in August v. Bronstein, 417 U. S. 901 (1974), aff’g 369 F. Supp. 190 (SDNY), a case in which a three-judge panel upheld against equal protection and right-to-travel challenges the same sections of the New York State Constitution and Civil Service Law at issue in the instant action, compelled that result. The Court of Appeals for the Second Circuit reversed. Soto-Lopez v. New York City Civil Service Comm’n, 755 F. 2d 266 (1985). It concluded that August, supra, had implicitly been overruled by our more recent decision in Zobel v. Williams, 457 U. S. 55 (1982), and held that the prior residence requirement of the New York civil service preference offends both the Equal Protection Clause and the right to travel. The Court of Appeals remanded with various instructions, including the direction that the District Court permanently enjoin the defendants from denying bonus points to otherwise qualified veterans who were not residents of New York at the time they entered the military service. We noted probable jurisdiction of this appeal of the Attorney General of New York. 473 U. S. 903 (1985). We affirm. II “‘[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.’” Dunn v. Blumstein, 405 U. S. 330, 338 (1972) (quoting United States v. Guest, 383 U. S. 745, 758 (1966)). See, e. g., Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J., dissenting); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U. S. 112, 237 (1970) (separate opinion of Brennan, White, and Marshall, JJ.); id., at 285-286 (Stewart, J., concurring in part and dissenting in part, with whom Burger, C. J., and Blackmun, J., joined); Memorial Hospital v. Maricopa County, 415 U. S. 250, 254 (1974). And, it is clear that the freedom to travel includes the “‘freedom to enter and abide in any State in the Union.’” Dunn, supra, at 338 (quoting Mitchell, supra, at 285). The textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration, though, has proved elusive. It has been variously assigned to the Privileges and Immunities Clause of Art. IV, see, e. g., Zobel, supra, at 71 (O’Connor, J., concurring in judgment), to the Commerce Clause, see Edwards v. California, 314 U. S., at 173-174, and to the Privileges and Immunities Clause of the Fourteenth Amendment, see, e. g., id., at 177-178 (Douglas, J., concurring). The right has also been inferred from the federal structure of government adopted by our Constitution. Zobel, supra, at 67 (Brennan, J., concurring); Shapiro, supra, at 631; United States v. Guest, supra, at 757-758. However, in light of the unquestioned historic acceptance of the principle of free interstate migration, and of the important role that principle has played in transforming many States into a single Nation, we have not felt impelled to locate this right definitively in any particular constitutional provision. Shapiro, supra, at 630. Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases. See, e. g., Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618, n. 6 (1985); Zobel, supra, at 60, n. 6; Jones v. Helms, 452 U. S. 412, 418 (1981); Memorial Hospital v. Maricopa County, supra; Dunn, supra; Shapiro, supra; United States v. Guest, supra, at 757-759. A state law implicates the right to travel when it actually deters such travel, see, e. g., Crandall v. Nevada, supra, at 46; see also Shapiro, supra, at 629, when impeding travel is its primary objective, see Zobel, supra, at 62, n. 9; Shapiro, supra, at 628-631, or when it uses “‘any classification which serves to penalize the exercise of that right. ’ ” Dunn, supra, at 340 (quoting Shapiro, supra, at 634). Our right-to-migrate cases have principally involved the latter, indirect manner of burdening the right. More particularly, our recent cases have dealt with state laws that, by classifying residents according to the time they established residence, resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents. Hooper, supra; Zobel v. Williams, 457 U. S. 55 (1982); Sosna v. Iowa, 419 U. S. 393 (1975); Memorial Hospital, supra; Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro, supra. Because the creation of different classes of residents raises equal protection concerns, we have also relied upon the Equal Protection Clause in these cases. Whenever a state law infringes a constitutionally protected right, we undertake intensified equal protection scrutiny of that law. See, e. g., Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440 (1985); Martinez v. Bynum, 461 U. S. 321, 328, n. 7 (1983); Plyler v. Doe, 457 U. S. 202, 216-217, and n. 15 (1982); Memorial Hospital, supra, at 258, 262; San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 16, and n. 39, 30-32, 40 (1973); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 101 (1972); Dunn, supra, at 335, 342; Shapiro, supra, at 634. Thus, in several cases, we asked expressly whether the distinction drawn by the State between older and newer residents burdens the right to migrate. Where we found such a burden, we required the State to come forward with a compelling justification. See, e. g., Shapiro v. Thompson, supra; Dunn, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974). In other cases, where we concluded that the contested classifications did not survive even rational-basis scrutiny, we had no occasion to inquire whether enhanced scrutiny was appropriate. Hooper, supra; Zobel, supra. The analysis in all of these cases, however, is informed by the same guiding principle — the right to migrate protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents. Hooper, supra, at 618, n. 6; Zobel, supra, at 60, n. 6; Memorial Hospital, supra, at 261; Shapiro, supra, at 629-631. New York’s eligibility requirements for its civil service preference conditions a benefit on New York residence at a particular past time in an individual’s life. It favors those veterans who were New York residents at a past fixed point over those who were not New York residents at the same point in their lives. Our cases have established that similar methods of favoring “prior” residents over “newer” ones, such as limiting a benefit to those who resided in the State by a fixed past date, Hooper, supra; granting incrementally greater benefits for each year of residence, Zobel, supra; and conditioning eligibility for certain benefits on completion of a fixed period of residence, see, e. g., Memorial Hospital, supra; Dunn v. Blumstein, supra; Shapiro, supra, warrant careful judicial review. But, our cases have also established that only where a State’s law “‘operates to penalize those persons... who have exercised their constitutional right of interstate migration’” is heightened scrutiny triggered. Memorial Hospital, supra, at 258, quoting Oregon v. Mitchell, 400 U. S., at 238 (separate opinion of Brennan, White, and Marshall, JJ.). Our task in this case, then, is first to determine whether New York’s restriction of its civil service preference to veterans who entered the Armed Forces while residing in New York operates to penalize those persons who have exercised their right to migrate. If we find that it does, appellees must prevail unless New York can demonstrate that its classification is necessary to accomplish a compelling state interest. Memorial Hospital, supra, at 262; Dunn, supra, at 342; Shapiro, 394 U. S., at 634. Ill A In previous cases, we have held that even temporary deprivations of very important benefits and rights can operate to penalize migration. For example, in Shapiro and in Memorial Hospital, we found that recently arrived indigent residents were deprived of life’s necessities by durational residence requirements for welfare assistance and for free, non-emergency medical care, respectively, which were available to other poor residents. In Dunn, we held that new residents were denied a basic right by a durational residence requirement for establishing eligibility to vote. The fact that these deprivations were temporary did not offset the Court’s conclusions that they were so severe and worked such serious inequities among otherwise qualified residents that they effectively penalized new residents for the exercise of their rights to migrate. More recently, in Hooper v. Bernalillo, 472 U. S. 612 (1985), and Zobel v. Williams, 457 U. S. 55 (1982), we struck down state laws that created permanent distinctions among residents based on the length or timing of their residence in the State. At issue in Hooper was a New Mexico statute that granted a tax exemption to Vietnam veterans who resided in the State before May 8, 1976. Zobel concerned an Alaska statute granting residents one state mineral income dividend unit for each year of residence subsequent to 1959. Because we employed rational-basis equal protection analysis in those cases, we did not face directly the question whether the contested laws operated to penalize interstate migration. Nonetheless, the conclusion that they did penalize migration may be inferred from our determination that “the Constitution will not tolerate a state benefit program that ‘creates fixed, permanent distinctions... between... classes of concededly bona fide residents, based on how long they have been in the State.’” Hooper, supra, at 623 (quoting Zobel, supra, at 59). See also Zobel, supra, at 64. Soto-Lopez and Baez-Hernandez have been denied a significant benefit that is granted to all veterans similarly situated except for State of residence at the time of their entry into the military. While the benefit sought here may not rise to the same level of importance as the necessities of life and the right to vote, it is unquestionably substantial. The award of bonus points can mean the difference between winning or losing civil service employment, with its attendant job security, decent pay, and good benefits. Brief for Appellees 27-28. See also Guardians Assn. of New York City Police Dept., Inc. v. Civil Service Comm’n, 630 F. 2d 79, 85 (CA2 1980), cert. denied, 452 U. S. 940 (1981); Andrade v. Nadel, 477 F. Supp. 1275, 1279 (SDNY 1979). Furthermore, appellees have been permanently deprived of the veterans’ credits that they seek. As the Court of Appeals observed: “The veteran’s ability to satisfy the New York residence requirement is... fixed. He either was a New York resident at the time of his initial induction or he was not; he cannot earn a change in status.” 755 F. 2d, at 275. Such a permanent deprivation of a significant benefit, based only on the fact of nonresidence at a past point in time, clearly operates to penalize appellees for exercising their rights to migrate. B New York offers four interests in justification of its fixed point residence requirement: (1) the encouragement of New York residents to join the Armed Services; (2) the compensation of residents for service in time of war by helping these veterans reestablish themselves upon coming home; (3) the inducement of veterans to return to New York after wartime service; and (4) the employment of a “uniquely valuable class of public servants” who possess useful experience acquired through their military service. Brief for Appellant 15. All four justifications fail to withstand heightened scrutiny on a common ground — each of the State’s asserted interests could be promoted fully by granting bonus points to all otherwise qualified veterans. New York residents would still be encouraged to join the services. Veterans who served in time of war would be compensated. And, both former New Yorkers and prior residents of other States would be drawn to New York after serving the Nation, thus providing the State with an even larger pool of potentially valuable public servants. As we held in Dunn: “[I]f there are other, reasonable ways to achieve [a compelling state purpose] with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’” 405 U. S., at 343 (quoting Shelton v. Tucker, 364 U. S. 479, 488 (1960)). See also Memorial Hospital, 415 U. S., at 263. Because New York could accomplish its purposes without penalizing the right to migrate by awarding special credits to all qualified veterans, the State is not free to promote its interests through a preference system that incorporates a prior residence requirement. Two of New York’s asserted interests have additional weaknesses. First, the availability of the preference to inductees as well as enlistees undercuts the State’s contention that one of the most important purposes of the veterans’ credit is to encourage residents to enlist in the services. Second, the fact that eligibility for bonus points is not limited to the period immediately following a veteran’s return from war casts doubt on New York’s asserted purpose of easing the transition from wartime military conditions to civilian life, for, presumably, a veteran of the Korean War could take a civil service examination and receive the bonus points tomorrow, 30 years after his homecoming. Cf. Hooper, 472 U. S., at 621. The State’s failure to limit the credit to enlistees recently returned to New York from war strongly suggests that the State’s principal interest is simply in rewarding its residents for service to their country. Compensating veterans for their past sacrifices by providing them with advantages over nonveteran citizens is a longstanding policy of our Federal and State Governments. See, e. g., Hooper, supra; Regan v. Taxation with Representation of Washington, 461 U. S. 540, 551 (1983); Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279, n. 25 (1979). Nonetheless, this policy, even if deemed compelling, does not support a distinction between resident veterans based on their residence when they joined the military. Members of the Armed Forces serve the Nation as a whole. While a serviceperson’s home State doubtlessly derives indirect benefit from his or her service, the State benefits equally from the contributions to our national security made by other service personnel. “Permissible discriminations between persons” must be correlated to “their relevant characteristics.” Zobel, 457 U. S., at 70 (Brennan, J., concurring). Because prior residence has only a tenuous relation, if any, to the benefit New York receives from all Armed Forces personnel, the goal of rewarding military service offers no support for New York’s fixed point residence requirement. IV In sum, the provisions of New York’s Constitution, Art. V, § 6, and Civil Service Law § 85, which limit the award of a civil service employment preference to resident veterans who lived in New York at the time they entered the Armed Forces, effectively penalize otherwise qualified resident veterans who do not meet the prior residence requirement for their exercise of the right to migrate. The State has not met its heavy burden of proving that it has selected a means of pursuing a compelling state interest which does not impinge unnecessarily on constitutionally protected interests. Consequently, we conclude that New York’s veterans’ preference violates appellees’ constitutionally protected rights to migrate and to equal protection of the law. Once veterans establish bona fide residence in a State, they “become the State’s ‘own’ and may not be discriminated against solely on the basis of [the date of] their arrival in the State.” Hooper, supra, at 623. See also Vlandis v. Kline, 412 U. S. 441, 449-450, and n. 6 (1973); Shapiro, 394 U. S., at 632-633; Passenger Cases, 7 How., at 492 (Taney, C. J., dissenting). For as long as New York chooses to offer its resident veterans a civil service employment preference, the Constitution requires that it do so without regard to residence at the time of entry into the services. Accordingly, the judgment of the Court of Appeals is Affirmed. New York Constitution, Art. V, §6, provides: “Appointments and promotions in the civil service of the state and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; provided, however, that any member of the armed forces of the United States who served therein in time of war, who is a citizen and resident of this state and was a resident at the time of his entrance into the armed forces of the United States and was honorably discharged or released under honorable circumstances from such service, shall be entitled to receive five points additional credit in a competitive examination for original appointment and two and one-half points additional credit in an examination for promotion or, if such member was disabled in the actual performance of duty in any war... he shall be entitled to receive ten points additional credit in a competitive examination for original appointment and five points additional credit in an examination for promotion.... No such member shall receive the additional credit granted by this section after he has received one appointment, either original entrance or promotion, from an eligible list on which he was allowed the additional credit granted by this section.” New York Civ. Serv. Law §85 essentially restates the substance of the constitutional provision and defines the relevant terms. As was observed in Zobel v. Williams, 457 U. S. 55, 67 (1982) (Brennan, J., concurring): “[It] is clear from our cases [that] the right to travel achieves its most forceful expression in the context of equal protection analysis. But if, finding no citable passage in the Constitution to assign as its source, some might be led to question the independent vitality of the principle of free interstate migration, I find its unmistakable essence in that document that transformed a loose confederation of States into one Nation.” We have always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State. See, e. g., Martinez v. Bynum, 461 U. S. 321, 325-330 (1983); Memorial Hospital v. Maricopa County, 415 U. S. 250, 255, 267 (1974); Dunn v. Blumstein, 405 U. S. 330, 343 (1972); Shapiro v. Thompson, 394 U. S. 618, 636, 638, n. 21 (1969). As we explained in Martinez: “A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement... [generally] does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents.” 461 U. S., at 328-329. Of course, regardless of the label we place on our analysis — right to migrate or equal protection — once we find a burden on the right to migrate the standard of review is the same. Laws which burden that right must be necessary to further a compelling state interest. See, e. g., Memorial Hospital, supra; Dunn, supra; Shapiro, supra. We have cautioned, however, that not all waiting periods are impermissible. See, e. g., Memorial Hospital, supra, at 258-259; Shapiro, supra, at 638, n. 21. Indeed, in Sosna v. Iowa, 419 U. S. 393 (1975), we upheld a 1-year residency condition for maintaining an action for divorce. We noted the State’s strong, traditional interest in setting the terms of and procedures for marriage and divorce. Weighing the fact that appellant’s access to the desired state procedure was only temporarily delayed, against the State’s important interest, we concluded that her right to migrate was not violated. We have also sustained domicile requirements, which incorporated 1-year waiting periods, for resident tuition at state universities. Starns v. Malkerson, 401 U. S. 985 (1971), summarily aff’g 326 F. Supp. 234 (Minn. 1970) (three-judge court); Sturgis v. Washington, 414 U. S. 1057 (1973), summarily aff’g 368 F. Supp. 38 (WD Wash.) (three-judge court). See also Vlandis v. Kline, 412 U. S. 441, 452-454 (1973). In his concurrence, The Chief Justice takes us to task for asking in the first instance what is the appropriate standard of review to employ in evaluating New York’s laws. The Chief Justice argues that we should initially run the laws through a rational-basis analysis and then, if they survive that level of scrutiny, ask whether a higher level is appropriate. We disagree. The logical first question to ask when presented with an equal protection claim, and the one we usually ask first, is what level of review is appropriate. See, e. g., Dunn, 405 U. S., at 335 (“In considering laws challenged under the Equal Protection Clause... [f]irst... we must determine what standard of review is appropriate”). See also, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Plyler v. Doe, 457 U. S. 202 (1982); Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). It is well established that where a law classifies by race, alienage, or national origin, and where a law classifies in such a way as to infringe constitutionally protected fundamental rights, heightened scrutiny under the Equal Protection Clause is required. See, e. g., Cleburne, supra, at 440; Martinez, 461 U. S., at 328, n. 7; Plyler v. Doe, supra, at 216-217, and n. 15; Memorial Hospital, supra, at 258, 262; San Antonio Independent School District, supra, at 16, and nn. 39, 30-32, 40; Mosley, supra, at 101; Dunn, supra, at 335, 342; Shapiro, supra, at 634. In the instant case, appellees contend not only that the laws in question treat them differently from another class of state residents, they also maintain that by treating them differently, the laws burden their constitutionally protected right to travel. Therefore, in order to ascertain the appropriate level of scrutiny, we must, as an initial matter, determine whether or not the State’s laws actually burden appellees’ right to travel. It is true, as The Chief Justice suggests, that in Hooper v. Bernalillo County Assessor, 472 U. S. 612 (1985), and Zobel v. Williams, 457 U. S. 55 (1982), the Court did not follow this same logical sequence of analysis. We think that the better approach is that which the Court has employed in other equal protection cases — to inquire first as to the proper level of scrutiny and then to apply it. In Andrade v. Nadel, 477 F. Supp. 1275, 1279 (SDNY 1979), the Deputy Director of the New York City Department of Personnel testified: “[O]n most civil service examinations, there is a pronounced ‘bunching’ (i. e., a large percentage of the test takers obtain very similar scores). [I]t can be assumed that rescission of the five or 10 point veterans’ preference in the case of most of 1,300 employee [veterans receiving probationary appointments in New York City in a specific year would] result in their receiving a list number that has not yet been reached for appointment, and... consequently [in their losing] their jobs.” Appellees contend that this “bunching” phenomenon adversely affected their employment opportunities with the City of New York. For example, after passing a New York City civil service examination, Baez-Hernandez was preliminarily awarded 10 veterans’ bonus points — 5 for veteran status, and 5 for his service-related disability, bringing his total score to 87.3. Based on this adjusted score, he received an appointment with the city in June 1981. The award of the 10 bonus points was rescinded two days later, however, and the appointment withdrawn when it was discovered that Baez-Hernandez was not a New York resident at the time of his entry into the Army. Soto-Lopez v. New York City Civil Service Comm’n, 755 F. 2d 266, 268-269 (CA2 1985). Moreover, it is difficult to understand why veterans who joined the military	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
NATIONAL LABOR RELATIONS BOARD v. BOEING CO. et al. No. 71-1607. Argued March 26, 1973 Decided May 21, 1973 RehNQüist, J., delivered the opinion of the Court, in which BreNNAN, Stewart, White, Marshall, and Powell, JJ., joined. Burger, C. J., filed a dissenting opinion, post, p. 78. Douglas, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun, J., joined, post, p. 79. Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Peter G. Nash, and Patrick Hardin. Samuel Lang argued the cause for respondent Boeing Co. With him on the brief were C. Dale Stout and Frederick A. Kullman. Bernard Dunau argued the cause for respondent Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO. With him on the briefs were Plato E. Papps, Louis P. Poulton, and C. Paul Barker J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal. Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance. Mr. Justice Rehnquist delivered the opinion of the Court. The question presented in this case is whether the National Labor Relations Board is required by § 8 (b) (1)(A) of the National Labor Relations Act to inquire into the reasonableness of a disciplinary fine imposed by a union upon a member when the Board exercises its admitted authority under that section to determine whether the fine otherwise constitutes an unfair labor practice. The Board held that the validity of union fines under the Act does not depend on their being reasonable in amount. Booster Lodge No. 405, 185 N. L. R. B. 380, 383 n. 16, 75 L. R. R. M. 1004, 1007 n. 16 (1970). On petition for judicial review of this determination, the Court of Appeals held that an unreasonably large fine is coercive and restraining within the meaning of § 8 (b) (1) (A), and remanded the case to the Board with directions to consider “questions relating to the reasonableness of the fines imposed by the Union.” Booster Lodge No. 405, International Association of Machinists v. NLRB, 148 U. S. App. D. C. 119, 137, 459 F. 2d 1143, 1161 (1972). We granted certiorari, 409 U. S. 1074 (1972), and now reverse the judgment below. From May 16,1963, through September 15,1965, Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO (the Union), and the Boeing Co. (the Company) were parties to a collective-bargaining agreement. Upon expiration of this agreement the Union called a lawful economic strike at the Company's Michoud plant in New Orleans and at other locations. As of October 2, 1965, the parties signed a new collective-bargaining agreement and the strikers thereafter returned to work. Both agreements contained maintenance-of-membership clauses that required Union members to retain their membership during the contract term. New employees were required to notify the Union and the Company within 40 days of accepting employment if they elected not to join the Union. During the 18-day strike some 143 employees out of 1,900 production and maintenance employees in the bargaining unit at the Michoud plant crossed the picket lines and returned to work. All of these employees were Union members at the time the strike began, although some of them tendered their resignations either before or after crossing the picket lines. In late October or early November 1965 the Union notified these employees that charges had been preferred against them for violating the International Union’s constitution. The constitution provides penalties for the “improper conduct of a member,” which term includes “[accepting employment ... in an establishment where a strike . . . exists.” In accordance with appropriate union procedures, including notice and opportunity for a hearing, all strikebreakers were found guilty, fined $450, and barred from holding Union office for a period of five years. While some of the fines were reduced and some partial payments were received by the Union, no member paid the full $450. After warning members to pay their fines or face the consequences, the Union filed suits in state court against nine individual employees to collect the fines. None of these suits has been finally adjudicated. In February 1966 the Company filed a charge with the Labor Board alleging that the attempted court enforcement of the fines violated § 8 (b) (1) (A) of the National Labor Relations Act. The allegations were basically twofold: first, that the Union committed an unfair labor practice by fining employees who had resigned from the Union, an issue that we consider in the companion case, Machinists <& Aerospace Workers v. NLRB, post, p. 84; and, second, that as to the members who were otherwise validly fined, the fines were unreasonable in amount. Thereafter the Board’s General Counsel issued a complaint and the case was heard by a Trial Examiner. With respect to the second issue, the Trial Examiner determined that the fines were impermissibly excessive, but the Board refused to adopt his conclusion. It relied on a case decided the same day, Machinists, Local Lodge 504 (Arrow Development Co.), 185 N. L. R. B. 365, 75 L. R. R. M. 1008 (1970), reversed sub nom. O’Reilly v. NLRB, 472 F. 2d 426 (CA9 1972), in which it held that Congress did not intend to give the Board authority to regulate the size of union fines or to establish standards with respect to a fine’s reasonableness. Section 8 (b)(1)(A) of the Act provides, in pertinent part, that it shall be an unfair labor practice for a labor organization “to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 of this title.” Among the § 7 rights guaranteed to employees is the right to refrain from any of the concerted activities described in that section. We have previously held that § 8 (b)(1) (A) was not intended to give the Board power to regulate internal union affairs, including the imposition of disciplinary fines, with their consequent court enforcement, against members who violate the unions' constitutions and bylaws. NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175 (1967); Scofield v. NLRB, 394 U. S. 423 (1969). In Allis-Chalmers we held that court enforcement of fines ranging from $20 to $100 for crossing picket lines did not “restrain or coerce” employees within the meaning of the Act. And in Scofield we held that the union did not violate the Act in imposing fines of $50 and $100 on members for violating a union rule relating to production ceilings. In deciding these cases, the Court several times referred to the unions' imposition of “reasonable” fines. In particular, the Scofield Court concluded “that the union rule is valid and that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8 (b) (1) (A).” 394 U. S., at 436 (emphasis added). The Company contends, not illogically, that the Court’s use of the adjective “reasonable” was intended to suggest to the Board that an unreasonable fine would amount to an unfair labor practice. This interpretation, however, permissible as it may be, is only dicta, since in both Allis-Chalmers and in Scofield the reasonableness of the fines was assumed. 388 U. S., at 192-193, n. 30; 394 U. S., at 430. Being squarely presented with the issue in this case, we recede from the implications of the dicta in these earlier cases. While “unreasonable” fines may be more coercive than “reasonable” fines, all fines are coercive to a greater or lesser degree. The underlying basis for the holdings of Allis-Chalmers and Scofield was not that reasonable fines were noncoercive under the language of §8 (b)(1)(A) of the Act, but was instead that those provisions were not intended by Congress to apply to the imposition by the union of fines not affecting the employer-employee relationship and not otherwise prohibited by the Act. The reason for this determination, in turn, was that Congress had not intended by enacting this section to regulate the internal affairs of unions to the extent that would be required in order to base unfair labor practice charges on the levying of such fines. The Court's examination of the legislative history of this provision in Allis-Chalmers led to the conclusion that: “What legislative materials there are dealing with §8 (b)(1) (A) contain not a single word referring to the application of its prohibitions to traditional internal union discipline in general, or disciplinary fines in particular. On the contrary there are a number of assurances by its sponsors that the section was not meant to regulate the internal affairs of unions.” 388 U. S., at 185-186 (emphasis added) . In Scofield we decided that Congress intended to distinguish between the external and the internal enforcement of union rules, and that therefore the Board would have authority to pass on those rules affecting an individual’s employment status but not on his union membership status. 394 U. S., at 428-430. Inquiry by the Board into the multiplicity of factors that the parties and the Court of Appeals correctly thought to have a bearing on the issue of reasonableness would necessarily lead the Board, to a substantial involvement in strictly internal union affairs. While the line may not always be clear between those matters that are internal and those that are external, to the extent that the Board was required to examine into such questions as a union’s motivation for imposing a fine it would be delving into internal union affairs in a manner which we have previously held Congress did not intend. Given the rationale of Allis-Chalmers and Scofield, the Board’s conclusion that §8 (b)(1) (A) of the Act has nothing to say about union fines of this nature, whatever their size, is correct. Issues as to the reasonableness or unreasonableness of such fines must be decided upon the basis of the law of contracts, voluntary associations, or such other principles of law as may be applied in a forum competent to adjudicate the issue. Under our holding, state courts will be wholly free to apply state law to such issues at the suit of either the union or the member fined. Our conclusion is also supported by the Board’s longstanding administrative construction to the same effect. At least since 1954, it has been the Board’s consistent position that it has “not been empowered by Congress ... to pass judgment on the penalties a union may impose on a member so long as the penalty does not impair the member’s status as an employee.” Local 288, UAW, 145 N. L. R. B. 1097, 1104 (1964). See also Minneapolis Star ■& Tribune Co., 109 N. L. R. B. 727, 34 L. R. R. M. 1431 (1954). We have held in analogous situations that such a consistent and contemporaneous construction of a statute by the agency charged with its enforcement is entitled to great deference by the courts. Griggs v. Duke Power Co., 401 U. S. 424, 433-434 (1971); Udall v. Tollman, 380 U. S. 1, 16 (1965). The Court of Appeals and the Company have suggested several policy reasons why the Board should not leave the determinations of reasonableness entirely to the state courts. Their basic reasons are, first, that more uniformity in the determination of what is reasonable will result if the Board suggests standards and, second, that more expertise in labor matters will be brought to bear if the issue is decided by the Board rather than solely by the courts. Even if we were to concede the relevance of policy factors in determining congressional intent, we are not persuaded that the Board is necessarily the better forum for determining the reasonableness of a fine. As we noted in Allis-Chalmers, court enforcement of union fines is not a recent innovation but has been known at least since 1867. 388 U. S., at 182 n. 9. See also Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (1960). The relationship between a member and his union is generally viewed as contractual in nature, International Association of Machinists v. Gonzales, 356 U. S. 617, 618 (1958) ; Scofield v. NLRB, 394 U. S., at 426 n. 3; NLRB v. Textile Workers, 409 U. S. 213, 217 (1972), and the local law of contracts or voluntary associations usually governs the enforcement of this relationship. NLRB v. Allis-Chalmers Mfg. Co., 388 U. S., at 182 and 193 n. 32; Scofield v. NLRB, supra, at 426 n. 3. We alluded to state court enforcement of unusually harsh union discipline in Allis-Chalmers when we stated that “state courts, in reviewing the imposition of union discipline, find ways to strike down ‘discipline [which] involves a severe hardship.’ ” 388 U. S., at 193 n. 32, quoting Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049, 1078 (1951). The Board assumed that in view of this statement, our reference to “reasonable” fines, when reasonableness was not in issue, in Allis-Chalmers and in Scofield, was merely adverting to the usual standard applied by state courts in deciding whether to enforce union-imposed fines. The Board reads these cases, therefore, as encouraging state courts to use a reasonableness standard, not as a directive to the Board. Our review of state court cases decided both before and after our decisions in Allis-Chalmers and Scofield reveals that state courts applying state law are quite willing to determine whether disciplinary fines are reasonable in amount. Indeed, the expertise required for a determination of reasonableness may well be more evident in a judicial forum that is called upon to assess reasonableness in varying factual contexts than it is in a specialized agency. In assessing the reasonableness of disciplinary fines, for example, state courts are often able to draw on their experience in areas of the law apart from labor relations. Nor is it clear, as contended by the Court of Appeals, that the Board’s setting of standards of reasonableness will necessarily result in greater uniformity in this area even if uniformity is thought to be a desirable goal. Since state courts will have jurisdiction to determine reasonableness in the enforcement context in any event, the Board’s independent determination of reasonableness in an unfair labor practice context might well yield a conflict when the two forums are called upon to review the same fine. For all of the foregoing reasons, we conclude that the Board was warranted in determining that when the union discipline does not interfere with the employee-employer relationship or otherwise violate a policy of the National Labor Relations Act, the Congress did not authorize it “to evaluate the fairness of union discipline meted out to protect a legitimate union interest.” The judgment of the Court of Appeals is, therefore, Reversed. “(b) It shall be an unfair labor practice for a labor organization or its agents— “(1) to restrain or coerce (A). employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . ." 61 Stat. 141, 29 U. S. C. § 158 (b)(1)(A). Of the 143 employees who crossed the picket lines, 24 made no attempt to resign from the Union, 61 resigned before crossing the picket lines, and 58 resigned after crossing the picket lines and reporting for work. The validity of the fines imposed against those who resigned from the Union is considered in a companion case, Machinists & Aerospace Workers v. NLRB, post, p. 84. See also NLRB v. Textile Workers, 409 U. S. 213 (1972). The Union constitution provides that members found guilty of misconduct after notice and a hearing are subject to “reprimand, fine, suspension, or expulsion from membership or any lesser penalty or combination.” The constitution sets no maximum dollar limitation on fines. The base income of the employees fined ranges from $95 to $145 for a 40-hour workweek. Fines were reduced to 50% of wages earned during the strike for 35 members who appeared for the Union trial, apologized for their actions, and pledged loyalty to the Union. Eighteen of these reduced fines have been paid in full. The proviso to this section states: “That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” It has been the Board’s position that this proviso authorizes the unions to impose disciplinary fines on union members. Minneapolis Star & Tribune Co., 109 N. L. R. B. 727, 34 L. R. R. M. 1431 (1954); Wisconsin Motor Corp., 145 N. L. R. B. 1097, 55 L. R. R. M. 1085 (1964); Allis-Chalmers Mfg. Co., 149 N. L. R. B. 67, 57 L. R. R. M. 1242 (1964). This Court, however, in holding that court enforcement of union fines was not an unfair labor practice in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175 (1967), relied on congressional intent only with respect to the first part of this section. The parties’ principal contentions in this case do not depend on the scope of the proviso and we do not consider its interpretation necessary to our conclusion. In its entiret}'- § 7 provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” 61 Stat. 140, 29 U. S. C. § 157. Moreover, since the Board has consistently over a long period of time interpreted the Act as not giving it authority to examine the reasonableness of disciplinary fines, infra, at 74^75, it is not likely that the Court specificially intended, by the use of a single adjective, and without mentioning the Labor Board cases to the contrary, to overturn the Board’s interpretation of the Act. Nor can it be argued that the Court was unaware of the Board’s interpretation, for the Scofield Court stated that in Allis-Chalmers it “essentially accepted the position of the National Labor Relations Board dating from Minneapolis Star & Tribune Co., 109 N. L. R. B. 727 (1954) where the Board also distinguished internal from external enforcement in holding that a union could fine a member for his failure to take part in picketing during a strike . . . .” Scofield v. NLRB, 394 U. S. 423, 428 (1969). As we also noted in Allis-Chalmers, this interpretation is supported by the Landriun-Griffin Act, where “Congress expressly recognized that a union member may be ‘fined, suspended, expelled, or otherwise disciplined,’ and enacted only procedural requirements to be observed. 73 Stat. 523, 29 U. S. C. § 411 (a) (5).” NLRB v. Allis-Chalmers Mfg. Co., 388 U. S., at 194. Cf. Motor Coach Employees v. Lockridge, 403 U. S. 274, 296 (1971); U. O. P. Norplex v. NLRB, 445 F. 2d 155, 158 (CA7 1971) (“The reasonableness of the fines is a matter for the state court to determine should the Union seek judicial enforcement of the fines”). It is also noteworthy that when Congress has intended the Board to examine a fee for being excessive or unreasonable, it has specifically so stated and has provided statutory standards for the Board to follow in making such a determination. See, e. g., 29 U. S. C. § 158 (b) (5) (union initiation fees). The Board’s interpretation of our decisions is basically the following: “Thus, the Court’s findings that the fines in those cases were reasonable seems directed to enforcing courts, encouraging those courts to make an independent determination of the reasonableness of the fine in each case presented, in the same fashion as courts limit other union discipline which imposes a severe hardship. Such considerations are of an equitable nature rather than of the character of restraint and coercion with which the National Labor Relations Act treats.” Machinists, Local Lodge 604 (Arrow Development Co.), 185 N. L. R. B. 365, 368, 75 L. R. R. M. 1008, 1010 (1970). Auto Workers Local 283 v. Scofield, 76 L. R. R. M. 2433 (Wis. Sup. Ct. 1971) ($100 fine deemed reasonable); Farnum v. Kurtz, 70 L. R. R. M. 2035 (Los Angeles Mun. Ct. 1968) ($592 fine deemed unreasonable and reduced to $100); McCauley v. Federation of Musicians, 26 L. R. R. M. 2304 (Pa. Ct. of Common Pleas 1950) ($300 fine deemed excessive and reduced to $100); North Jersey News-payer Guild Local No. 173 v. Rakos, 110 N. J. Super. 77, 264 A. 2d 453 (1970) ($750 fine reduced to $500, which was deemed reasonable); Walsh v. Communications Workers of America, Local me, 259 Md. 608, 271 A. 2d 148 (1970) ($500 fine deemed reasonable) ; Local 248, United Auto Workers v. Natzke, 36 Wis. 2d 237, 153 N. W. 2d 602 (1967) ($100 fine upheld); Jost v. Communications Workers of America, Local 9408, 13 Cal. App. 3d Supp. 7, 91 Cal. Rptr. 722 (1970) ($299 fine upheld, the court stating that “it is the settled law in this country that such a fine becomes a debt enforceable by the courts in an amount that is not unreasonably large.” Id., at 12, 91 Cal. Rptr., at 725). See, e. g., Farnum v. Kurtz, supra, at 2041, where a municipal court judge, in reducing a union-imposed fine of $592 to $100, revealed that the kind of expertise required by this type of case is not that of a technical knowledge of labor law: “Based upon the facts herein and the Court’s experiences [in passing judgment in thousands of misdemeanor cases], the fine assessed is much too large and unreasonable. The Court finds that a fine of $100.00 serves the ends of justice and is more in keeping with the circumstances herein and reasonable.” Scofield v. NLRB, 394 U. S., at 429; NLRB v. Marine Workers, 391 U. S. 418 (1968). Machinists, Local Lodge 504 (Arrow Development Co.), 185 N. L. R. B. 365, 638, 75 L. R. R. M. 1008, 1011 (1970). The Board has long held that the Act proscribes certain unacceptable methods of union coercion, such as physical violence to force an employee to join a union or to participate in a strike. In re Maritime Union, 78 N. L. R. B. 971, enforced, 175 F. 2d 686 (CA2 1949), cited in Scofield v. NLRB, supra, at 428 n. 4.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 81 ]	sc_adminaction
ALASKA INDUSTRIAL BOARD et al. v. CHUGACH ELECTRIC ASSOCIATION, INC., et al. No. 303. Argued April 8, 1958. — Decided April 28, 1958. John H. Dimond argued the cause for petitioners. On the brief were J. Gerald Williams, Attorney General of Alaska, for the Alaska Industrial Board, and Mr. Dimond for Jenkins, petitioners. Frederick 0. Eastaugh argued the cause for respondents. With him on the brief was Ralph E. Robertson. Mr. Justice Douglas delivered the opinion of the Court. This case presents an important question under the Alaska Workmen’s Compensation Act, 2 Alaska Comp. L. Ann., 1949, § 43-3-1 et seq. Petitioner Jenkins, an employee of respondent Chugach Electric Association, was injured in the course of his employment. Three surgical operations were required: amputation of his left arm at the shoulder; amputation of four toes on his left foot; and later, amputation of his right leg below the knee. Though the injury occurred in September 1950, the left foot had not healed three years later. As a result Jenkins was for a rather long period totally disabled. Respondents made “temporary disability” payments to Jenkins for approximately 38 weeks ($95.34 a week or a total of $3,645). At that point they decided that Jenkins had been totally and permanently disabled since the date of the last amputation and was therefore entitled to a lump-sum award of $8,100 under the Act and no more. They thereupon sent him a check for that amount less the $3,645 already received, viz., $4,455. Jenkins then applied to the Alaska Industrial Board for continuing benefits for temporary disability, despite his receipt of the lump-sum award for total and permanent disability. The Board allowed him temporary disability from the date of the last amputation. This temporary disability, said the Board, “continues to this date, no end medical result having been reached.” Respondents thereupon instituted this action in the District Court to set aside the Board's decision. That court reversed the Board, holding that an award of temporary disability could not be granted under the Act for physical disability arising from the same accident in which a scheduled, lump-sum award for total permanent disability had been granted. 122 F. Supp. 210. The Court of Appeals, sitting en banc, affirmed, by a divided vote, modifying the judgment. 245 F. 2d 855. By that modification the lump-sum award was not to be reduced by the amount received as temporary disability prior to that time. The case is here on a petition for certiorari. 355 U. S. 810. The Court of Appeals reasoned that the lump-sum award for total and permanent disability was intended to represent a capitalization of future earnings. It concluded, therefore, that Jenkins had been compensated by the lump-sum award for any loss of future earnings and that he could not get a further award for loss of earnings, the lump-sum award being intended “as a maximum award.” Id,., at 862. We read the Act differently. The lump-sum awards for total and permanent disability under this Compensation Act ignore wage losses. Whatever the employee may have made before, whatever his wages may be after the injury, the award is the same. To that extent it is an arbitrary amount. But it is the expression of a legislative judgment that on average there has been a degree of impairment, and whatever may be the fact in a particular case, the lump sum should be paid without more. See 2 Larson, Workmen’s Compensation, § 58-10. There may, nevertheless, be a continuing ability to do some work; and as long as that remaining ability exists there is a factual basis for temporary disability awards. That seems to be the theory of the Act for it extends those awards to “all injuries causing temporary disability” and bases them on the “average daily wage earning capacity” of the injured employee, as determined by the Board. That award takes care of the lost wages during the healing period and until the employee is able to return to work though perhaps at a different job and at reduced pay. It also compensates him for any temporary loss of earning power based on the “wage earning capacity” that remains after the injury. The Court of Appeals assumed there was “no remaining ability to work” and therefore “no foundation for temporary disability benefits.” 245 F. 2d, at 862. But the Act, we think, is drawn on a different hypothesis. It seems to provide a system of temporary disabilities to all who are injured, whether their injuries are disfigurement, partial permanent disability, total and permanent disability, or so minor as to fall in lesser categories. Any other reading would seem to be hostile to the benign purpose of this legislation. Cf. Baltimore & Phila. S. Co. v. Norton, 284 U. S. 408, 414. Respondents maintain that Jenkins’ claim was not timely filed and that for other reasons also the Board had no jurisdiction to enter this award. These questions were decided adversely to respondents by the Court of Appeals and no cross-petition was filed, here. Those questions are therefore not open to respondents at this stage. LeTulle v. Scofield, 308 U. S. 415, 421-422. The judgment is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion. Reversed. Mr. Justice Whittaker, believing that an injured workman cannot be, or be legally compensated as, both “totally and permanently disabled” and “temporarily totally disabled” at one and the same time under the Alaska Workmen’s Compensation Act, would affirm for the reasons stated by the Court of Appeals, 245 F. 2d, at 862. Section 43-3-1 of the Act makes the following provision for “temporary disability”: “For all injuries causing temporary disability, the employer shall pay to the employee, during the period of such disability, sixty-five per centum (65%) of his daily average wages. And in all cases where the injury develops or proves to be such as to entitle the employee to compensation under some provision in this schedule, relating to cases other than temporary disability, the amount so paid or due him shall be in addition to the amount to which he shall be entitled under such provision in this schedule. “Payment for such temporary disability shall be made at the time compensation is customarily paid for labor performed or services rendered at the plant or establishment of the employer liable therefor and not less than once a month in any event. “The average daily wage earning capacity of an injured employee in case of temporary disability shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his daily wage earning capacity. If such earnings do not fairly and reasonably represent his daily wage earning capacity, the Industrial Board shall fix such daily wage earning capacity as shall be reasonable and have a due regard for the nature of his injury, the degree of temporary impairment, his usual employment and any other factor or circumstance in the case which may affect his capacity to earn wages in his temporary disabled condition.” Section 43-3-1 of the Act defines total and permanent disability as follows: “The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, or hearing in both ears, shall constitute total and permanent disability and be compensated according to the provisions of this Act with reference to total and permanent disability. “Amputation between the elbow and the wrist shall be considered equivalent to the loss of an arm, and amputation between the knee and the ankle shall be considered equivalent to the loss of a leg.” Section 43-3-1 of the Act provides: “Where any such employee receiving an injury arising out of, and in the course of his or her employment, as the result of which he or she is totally and permanently disabled, he or she shall be entitled to receive compensation as follows: “If such employee was at the time of his injury married he shall be entitled to receiye Seven Thousand Two Hundred Dollars ($7,200.00) with Nine Hundred Dollars ($900.00) additional for each child under the age of eighteen (18) years, but the total to be paid shall not exceed Nine Thousand Dollars ($9,000.00).” Note 1, supra. Note 1, supra. Section 43-3-1 provides: “The Industrial Board may award proper and equitable compensation for serious head, neck, facial, or other disfigurement, not exceeding, however, the sum of Two Thousand Dollars ($2,000.00).” Section 43-3-1 provides a schedule of partial permanent liability for losses of thumbs, toes, fingers, arms, legs, eyes, nose, and ear. See note 2, supra.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
SAXBE, ATTORNEY GENERAL, et al. v. BUSTOS et al. No. 73-300. Argued October 17, 1974 Decided November 25, 1974 Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 80. Mark L. Evans argued the cause for petitioners in No. 73-300 and respondents in No. 73-480. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Lajontant, Jerome M. Feit, and Charles Gordon. Bruce J. Terris argued the cause for respondents in No. 73-300 and petitioners in No. 73-480. With him on the brief were John W. Karr and Joseph Onek. Together with No. 73-480, Cardona et al. v. Saxbe, Attorney General, et al., also on certiorari to the same court. . Briefs of amici curiae were filed by J. Albert Woll, Laurence Gold,, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; by Ronald H. Bonaparte, John A. Joannes, Milton C. Gelenian, Thomas F. Olson, and Allen Lauter-bach for the American Farm Bureau Federation et al.; and by Richard D. Maltzman and Philip B. Bass for Bud Antle, Inc. Mr. Justice Douglas delivered the opinion of the Court. Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of § 101 (a)(27.)(B), 66 Stat. 169, as amended, 79 Stat. 916, 8 U. S. C. § 1101 (a)(27)(B), which defines as one variety of “special immigrant” an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” Those who qualify under § 1101 (a)(27)(B) may be permitted entry without the usual documentation requirements. 8 U. S. C. § T181 (b). The regulations implement § 1181 (b) by allowing such an immigrant to use an alien registration receipt card, normally called a “green card,” in lieu of an immigrant visa and without regard to numerical limitations if he is “returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.” The Act presumes that an alien is an immigrant “until he establishes . . . that he is entitled to a nonimmigrant status”; and it defines “immigrant” as every alien who cannot bring himself into an enumerated class of non-immigrants. One class of nonimmigrants is “an alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country. If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act’s numerical limitations, unless he is included in the classes of “immediate relatives” of a United States citizen or “special immigrants.” On the other hand, as already noted, one variety of “special immigrant” is an alien “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” One who so qualifies is excluded from the labor certification provisions in 8 U. S. C. § 1182 (a) (14). The term “lawfully admitted for permanent residence” is defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant..., such status not having changed.” An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act’s other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. § 1181 (b). He has exercised that authority, allowing such an immigrant to return with what was called in the briefs and oral argument the “green card.” This suit was brought by the United Farm Workers Organizing Committee for declaratory and injunctive relief against the practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants “lawfully admitted for permanent residence” who are “returning from a temporary visit abroad.” The District Court dismissed the action without opinion. The Court of Appeals held that the admission of daily commuters was proper but that the admission of seasonal commuters was not, 156 U. S. App. D. C. 304, 481 F. 2d 479 (1973). We granted the petition and cross-petition in light of a conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Gooch v. Clark, 433 F. 2d 74 (1970). Our conclusions are that commuters are immigrants, that they are “lawfully admitted for permanent residence,” and that they are “returning from a temporary visit abroad” when they enter the United States. Moreover, the wording and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens “will not adversely affect the wages and working conditions of the workers in the United States.” 8 U. S. C. § 1182 (a)(14). We thus agree with the con-elusion of the Ninth Circuit in Gooch. Accordingly, we affirm the judgment now before us as respects daily commuters and reverse it as respects seasonal commuters. A main reliance of plaintiffs is on the provision of the Act which in the much-discussed subsection (15) (H) (ii) provides that one category of alien .nonimmi-grant is “an alien having a residence in a foreign country which he has no intention of abandoning ... (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15)(H)(ii) in that they-have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15) (H) (ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant. We agree, moreover, with the Ninth Circuit that this provision “was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status.” 433 F. 2d, at 78. The administrative construction of this subsection (15)(H)(ii) by the Immigration Service has been that it does not cover an alien, like the commuter, who has a “permanent residence” here and who comes to perform a job of a permanent character, even though the period of his service is limited. To repeat, the Act provides that “[ejvery alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer . .. and the immigration officers ... that he is entitled to a nonimmigrant status under section 1101 (a) (15).” Before an alien can be classified as a nonimmi-grant under subsection (15)(H)(ii) his prospective employer must submit a petition on his behalf under 8 U. S. C. § 1184 (c); and after the INS approves the petition, the alien must apply for nonimmigrant status and demonstrate that he in fact qualifies for that status. We conclude that commuters are not nonimmigrants under subsection (15)(H)(ii). None of the other categories of nonimmigrants are applicable, and thus under § 1184 (b) the commuters are immigrants. The fact that an alien commuter who has not shown he must be classified as a nonimmigrant must be classified as an immigrant is not the end of our problem. The question remains whether he may properly be treated as one who is in the group defined as “special immigrants” under subsection (27)(B), that is, whether commuters are “lawfully admitted for permanent residence” when they have no actual residence in this country. Section 1101 (a) (20) defines “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the ■privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed” (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed. One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U. S. C. § 1257. 433 F. 2d, at 79. The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently. But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the “status” acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States. Thus we conclude that commuters are immigrants “lawfully admitted for permanent residence.” As did both the majority and dissent in Gooch, we also find that commuters can be viewed as “returning from a temporary visit abroad.” 433 F. 2d, at 79-81, 82 n. 1. The court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here. Our conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was a part of the Department of Labor. In 1940 the Bureau was transferred to the Department of Justice where it remains today. On April 1,1927, it issued General Order No. 86. Under the order, commuters were required to gain admission as immigrants before they could have border crossing privileges. The order provides that “[a]liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.” “Thus,” said the Court of Appeals in the instant cases, “the daily commuter was born,” 156 U. S. App. D. C., at 304, 481 F. 2d, at 485. This longstanding administrative construction is entitled to great weight, particularly when, as here, Congress has revisited the Act and left the practice untouched. Such a history of administrative construction and congressional acquiescence may add a gloss or qualification to what is on its face unqualified statutory language. Massachusetts Trustees v. United States, 377 U. S. 235 (1964); United States v. Midwest Oil Co., 236 U. S. 459 (1915). As the defendants below acknowledge, the meaning of the phrase “lawfully admitted for permanent residence” in § 1101 (a)(27)(B) may not be identical to the meaning of the same language in other sections of the Act where the same history of administrative construction is not present. We see no difference in the treatment of daily commuters and seasonal commuters. The status of the seasonal! commuter is the same as the status of the daily commuter because the identical statutory words cover each. The Court of Appeals, however, rested essentially on a different legislative history of seasonal commuters than had obtained in cases of daily commuters. Prior to 1917 there were essentially no limitations on the practice of commuting from Mexico or Canada to the United States. Legislation was passed in 1917, 1921, and 1924. But under those statutes commuters remained able freely to cross the border subject only to qualitative restrictions in the 1917 Act. As already noted, the administrative approach changed in 1927 when the Bureau of Immigration issued its General Order No. 86. While the 1952 Act, 66 Stat. 163, made no mention of commuters and while the 1965 amendments of the 1952 Act, 79 Stat. 911, were likewise silent as respects commuters, the Court of Appeals assumed that the longstanding practice of allowing daily commuters was not repealed sub silentio; and we agree. The Court of Appeals, however, took quite a different view of the seasonal commuter problem because of its different history. The seasonal commuter problem dates back at least to 1943 when this Government and Mexico agreed to the seasonal importation of Mexican agricultural workers. 56 Stat. 1759. Congress legislated on the problem in 1951, requiring farmers in this Nation to make reasonable efforts to attract domestic workers prior to certification by the Secretary of Labor of the need for foreign labor. That was known as the bracero program and the Court of Appeals called the seasonal commuter merely a new name for the former bracero. That is quite inaccurate. The braceros were at the start nonimmigrants; the seasonal commuters were immigrants. Some braceros, indeed quite a few, H. R. Rep. No. 722, 88th Cong., 1st Sess., 7 (1963), acquired permanent residence status. The seasonal commuter, like the daily commuter, has always been in that category. In 1964 the bracero type of seasonal program lapsed; and the next year Congress amended the Immigration and Nationality Act by making stricter the certification by the Secretary of Labor of the need for foreign labor and requiring findings on the lack of any adverse effect of the employment of aliens on the wages and working conditions of workers in this country. But that provision, which we have quoted, does not apply to aliens lawfully admitted for permanent residence returning from a temporary visit abroad and to certain close relatives. An alien' who first sought admission after the effective date of the 1965 Amendment would need a certificate of the Secretary of Labor; but if he already was an alien lawfully admitted to the United States for permanent residence and returning from a temporary visit abroad, the 1965 amendments would not affect him. The purpose of Congress was to limit new admissions of alien laborers, not to prejudice the status of aliens who, whether daily or seasonal commuters, had acquired permanent residence here and were returning to existing jobs. We have mentioned General Order No. 86 issued on April 1,1927, which treated the commuters as immigrants (not nonimmigrants), who on obtaining their admission cards would be “considered as having entered for permanent residence.” Cf. Karnuth v. United States ex rel. Albro, 279 U. S. 231, 244 (1929). The thrust of General Order No. 86 was to lift aliens who were natives of Canada and Mexico from the quota provisions for non-immigrants. Thus, they entered from that time down to date, with nonquota immigration documents. That regulation was carried forward in various regulations before 1952. The practice was reviewed ánd sustained in various published administrative decisions. Some suggested that the 1952 Act eliminated the alien commuter. The Board of Immigration Appeals, however, reaffirmed the validity of the practice. Matter of H - O -, 5 I. & N. Dec. 716 (1954). Thereafter repeated administrative decisions affirmed the adherence to the alien-commuter concept. We do not labor the administrative construction phase of these cases further, because when the 1952 Act was reported, the Senate Judiciary Committee tendered a voluminous report of nearly 1,000 pages touching on the alien commuters, describing the practice in some detail, and including the sections which we have discussed in this opinion. The commuters from Canada and Mexico were treated as lawfully admitted immigrants. No doubt as to the desirability of the practice was expressed. It is clear that S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) (the Omnibus Study Report), reveals a congressional acceptance of the system. The changes relevant to commuters in the 1965 amendments were, as stated in Gooch, minor and technical and contain no suggestion of a change in the commuter problem, 433 F. 2d, at 80-81. H. R. Rep. No. 745, 89th Cong., 1st Sess. (1965); S. Rep. No. 748, 89th Cong., 1st Sess. (1965). Since 1965 there have been numerous reports by committees of the Congress on the alien commuter problem which indicate that Congress is very knowledgeable about the problem and has not reached a consensus that the administrative policy reaching back at least to General Order No. 86 is wrong. We know from the Western Hemisphere Report that the dimensions of the problem are considerable. Daily commuters from Mexico number more than 42,000 of whom 25,000 are engaged in occupations other than agriculture. The total of Canadian commuters exceeds 10,000. Seasonal commuters number at least 8.300 according to the Service’s estimate. The United States Commission on Civil Rights estimates that if Mexican commuters were cut off, they would lose $50 million annually. The State Department estimates there are 250,000 family members dependent on income earned by commuters and that commuters account for 25% to 30% of the income earned by the labor force in some Mexican border communities. Termination of the alien commuter practice might well have a great impact on American border communities because the Mexicans who have the status of permanent residents could settle here, increasing the problems of housing and education in the border towns this side of the Rio Grande. Former Secretary of State Rogers submitted to the District Court an affidavit stating that any “sudden judicial termination of the commuter system, displacing the present immigrant commuters, would have a serious deleterious effect upon our relations with both Mexico and Canada.” Our conclusion is twofold. First, the provisions of the Act which sanction daily commuters are the ones that also support seasonal commuters. We would have to read the same language in two opposed ways to sanction the daily commuter program and strike down the seasonal commuter program. There is no difference in administrative treatment of the two classes of commuters. Second, if alien commuters are to be abolished or if seasonal commuters are to be treated differently from daily commuters, the Congress must do it. The changes suggested implicate so many policies and raise so many problems of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate “interstitially” to resolve ambiguities in laws. But the problem of taking all or some alien commuters engaging in farm work out of the Act is not “interstitial” or, as Mr. Justice Holmes once put it, “molecular.” It is a massive or “molar” action for which the Judiciary is ill-equipped. We affirm the Court of Appeals insofar as it held daily commuters are lawfully admitted and reverse it insofar as seasonal commuters are concerned. So ordered. 8 CFR §211.1 (b)(1). 8 U. S. C. §§ 1181 (a) and 1151-1153. § 1184(b). § HOI (a) (15). § 1101 (a) (15) (H). Legislation proposed in 1973 would limit the stay of these nonimmigrants to one year with possible extension to two years. H. R. Rep. No. 93-461, p. 16 (1973). 8 U. S. C. §1101 (a) (15) (H) (ii). § 1151 (a). § 1101 (a)(27)(B). The 1973 House Report, supra, n. 5, at 16, recognizes the difference between a “special immigrant” and non-immigrants covered by § 1101 (a)(15)(H). “Title 8 U. S. C. §1182 (a)(14) provides: “(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: “(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” §1101 (a) (20). A collective-bargaining agent for farmworkers. Two farm laborers were also plaintiffs and four more intervened in the District Court. The parties herein are referred to as they were in the District Court. In the District Court and the Court of Appeals plaintiffs also argued that 8 CFR § 211.1 (b) (1) should be read to preclude the entry of a commuter to work at a place where a labor dispute exists, even if the commuter has previously been employed there. This claim was not decided by the Court of Appeals and was not presented in plaintiffs’ petition for certiorari. Hence we offer no views on the merits of this claim. 8 U. S. C. §1101 (a) (15) (H). §1184 (b). Matter of Contopoulos, 10 I. & N. Dec. 654 (1964). 8 U. S. C. §1184 (b). 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.14b (rev. ed. 1974). The subsection is in 8 U. S. C. § 1101 (a). 8 U. S. C. §1151 (a). § 1182. §§ 1181 (a), 1201. §1202 (a). See 32 Stat. 826 ; 34 Stat. 596; c. 141, 37 Stat. 736. By then it was called the Immigration and Naturalization Service. Reorganization Plan No. V, 54 Stat. 1238. General Order No. 86 reads as follows: “Subject: Land border crossing procedure "1. Hereafter aliens residing in foreign contiguous countries and entering the United States to engage in existing employment or to seek employment in this country will not be considered as visiting the United States temporarily as tourists, or temporarily for business or pleasure, under any provisions of the Immigration Law which exempt visitors from complying with certain requirements thereof; that is, they will be considered as aliens of the ‘immigrant’ class. “2, However, the following aliens of the said ‘immigrant’ class residing in foreign contiguous countries and who are now enjoying the border crossing privilege may continue so to enjoy it upon the payment of head tax, provided such head tax was assessible [sic] on aliens entering permanently at the time of original admission and, provided further, that they are not coming to seek employment. “A. Aliens whose original admission occurred prior to June 3,1921. “B. Natives of nonquota countries whose original admission occurred prior to July 1,1924. “3. Aliens of all nationalities of the ‘immigrant’ class whose original admission occurred subsequent to June 30, 1924, will be required to meet all provisions of the Immigration Laws applying to aliens of the ‘immigrant’ class. Aliens of this class already enjoying the border crossing privilege, however, will be granted a reasonable time, not to exceed six months from July 1, 1927, within which to obtain immigration visas and otherwise comply with the laws. “4. Aliens who have already complied with the requirements of the Immigration Laws and this General Order may be permitted to continue to enjoy the border crossing privilege. “5. Aliens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence. “6. The use and issuance of identification cards to all classes of aliens entitled to same will continue as heretofore. “7. Identification cards held by or issued to aliens of the 'immigrant' class shall be rubber-stamped as follows: “IMMIGRANT “10. All identification cards heretofore issued, held by aliens who cannot, or do not, meet the requirements of law, regulations and this order, will be taken up and canceled upon an incoming trip of the holder and appropriate action taken. “12. The status of holders of identification cards shall be inquired into periodically .... When the holder of a 'nonimmigrant' identification card qualifies as an 'immigrant,' a new identification card shall be issued, stamped to show the correct status.” C. 29, 39 Stat. 874; 42 Stat. 5; c. 190, 43 Stat. 153. 65 Stat. 119. N. 9, supra. See 1 Gordon & Rosenfield, supra, n. 17, § 2.40. We find in the reports on the 1965 Act no suggestion that the commuter program was to be uprooted in its entirety, S. Rep. No. 748, 89th Cong., 1st Sess. (1965). That report emphasizes the purpose to prevent an “influx” of foreign labor, not to destroy existing labor arrangements. Id., at 15. For the text of General Order No. 86 see n. 25, supra. The aliens in Karnuth wanted to be treated as nonimmigrants. One of the categories of nonimmigrants under § 3 of the Immigration Act of 1924, 43 Stat. 154, was defined as “an alien visiting the United States temporarily ... for business or pleasure.” The Court held they did not qualify as laborers for hire. Immigration Rules and Regulations, Jan. 1, 1930, Rule 3, Subd. C; 8 CFR § 3.6 (1939); 8 CFR § 110.6 (1947). Matter of D -- C -, 3 I. & N. Dec. 519 (1949); Matter of L.-, 4 I. & N. Dec. 454 (1951). Matter of M-D -S-, 8 I. & N. Dec. 209 (1958); Matter of Bailey, 11 I. & N. Dec. 466 (1966); Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966); Matter of Gerhard, 12 I, & N. Dec. 556 (1967); Matter of Wighton, 13 I. & N. Dec. 683 (1971); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (1971). Report of Select Commission on Western Hemisphere Immigration 104 (196S). See S. Rep. No. 91-83. p. 65 (1969), stating that the alien commuter problem “can be resolved not by drastically putting an end to the commuter system, but by refining its current operations.” See Hearings on H. R. 9112, H. R. 15092, H. R. 17370 before Subcommittee No. 1 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 205-207. Stranger in One’s Land 12 (Clearinghouse Publication No. 19, 1970). Statement of Assistant Secretary of State Oliver to the Senate Subcommittee on Immigration, Sept. 25,1967, p. 6. Id., at 4. “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (1917) (dissenting opinion).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 67 ]	sc_adminaction
FEDERAL COMMUNICATIONS COMMISSION v. MIDWEST VIDEO CORPORATION et al. No. 77-1575. Argued January 10, 1979 Decided April 2, 1979 White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, and Rehnquist, JJ., joined. SteveNS, J., filed a dissenting opinion, in which BreNNAN and Marshall, JJ., joined, post, p. 709. Deputy Solicitor General Wallace argued the cause for petitioner in No. 77-1575 and in support of petitioners in Nos. 77-1648 and 77-1662 under this Court’s Rule 21 (4). With him on the briefs were Solicitor General McCree, Richard A. Allen, David J. Saylor, Keith H. Fagan, and Julian R. Rush, Jr. Burt Neuborne, Bruce J. Ennis, Michael Botein, and David M. Rice filed a brief for petitioner in No. 77-1648. Edward J. Kuhlmann, Jeffrey H. Olson, and Charles M. Firestone filed a brief for petitioners in No. 77-1662. George H. Shapiro argued the cause for respondent Midwest Video Corp. in all cases. With him on the brief was Harry M. Plotkin. Together with No. 77-1648, American Civil Liberties Union v. Federal Communications Commission et al., and No. 77-1662, National Black Media Coalition et al. v. Midwest Video Corporation et al., also on cer-tiorari to the same court. James Bouras, Frite E. Attaway, Arthur Scheiner, and Stuart F. Feld-stein filed a brief for the Motion Picture Assn, of America as amicus curiae urging reversal. Lee Loevinger and Jay E. Ricks filed a brief for Teleprompter Corp. et al. as amici curiae urging affirmance. Mr. Justice White delivered the opinion of the Court. In May 1976, the Federal Communications Commission promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by third parties, and to furnish equipment and facilities for access purposes. Report and Order in Docket No. 20508, 59 F. C. C. 2d 294 (1976 Order). The issue here is whether these rules are “reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting,” United States v. Southwestern Cable Co., 392 U. S. 157, 178 (1968), and hence within the Commission’s statutory authority. I The regulations now under review had their genesis in rules prescribed by the Commission in 1972 requiring all cable operators in the top 100 television markets to design their systems to include at least 20 channels and to dedicate 4 of those channels for public, governmental, educational, and leased access. The rules were reassessed in the course of further rulemaking proceedings. As a result, the Commission modified a compliance deadline, Report and Order in Docket No. 20363, 54 F. C. C. 2d 207 (1975), effected certain substantive changes, and extended the rules to all cable systems having 3,500 or more subscribers, 1976' Order, supra. In its 1976 Order, the Commission reaffirmed its view that there was “a definite societal good” in preserving access channels, though it acknowledged that the “overall impact that use of these channels can have may have been exaggerated in the past.” 59 F. C. C. 2d, at 296. As ultimately adopted, the rules prescribe a series of interrelated obligations ensuring public access to cable systems of a designated size and regulate the manner in which access is to be afforded and the charges that may be levied for providing it. Under the rules, cable systems must possess a minimum capacity of 20 channels as well as the technical capability for accomplishing two-way, nonvoice communication. 47 CFR § 76.252 (1977). Moreover, to the extent of their available activated channel capacity, cable systems must allocate four separate channels for use by public, educational, local governmental, and leased-access users, with one channel assigned to each. § 76.254 (a). Absent demand for full-time use of each access channel, the combined demand can be accommodated with fewer than four channels but with at least one. §§ 76.254 (b), (e). When demand on a particular access channel exceeds a specified limit, the cable system must provide another access channel for the same purpose, to the extent of the system’s activated capacity. § 76.254 (d). The rules also require cable systems to make equipment available for those utilizing public-access channels. § 76.256 (a). Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. System operators are specifically enjoined from exercising any control over the content of access programming except that they must adopt rules proscribing the transmission on most access channels of lottery information and commercial matter. §§ 76.256 (b), (d). The regulations also instruct cable operators to issue rules providing for first-come, nondiscriminatory access on public and leased channels. §§ 76.256 (d)(1), (3). Finally, the rules circumscribe what operators may charge for privileges of access and use of facilities and equipment. No charge may be assessed for the use of one public-access channel. § 76.256 (c) (2). Operators may not charge for the use of educational and governmental access for the first five years the system services such users. § 76.256 (c)(1). Leased-access-channel users must be charged an “appropriate” fee. § 76.256 (d)(3). Moreover, the rules admonish that charges for equipment, personnel, and production exacted from access users “shall be reasonable and consistent with the goal of affording users a low-cost means of television access.” § 76.256 (c)(3). And “[n]o charges shall be made for live public access programs not exceeding five minutes in length.” Ibid. Lastly, a system may not charge access users for utilization of its playback equipment or the personnel required to operate such equipment when the cable’s production equipment is not deployed and when tapes or film can be played without technical alteration to the system’s equipment. Petition for Reconsideration in Docket No. 20508, 62 F. C. C. 2d 399, 407 (1976). The Commission’s capacity and access rules were challenged on jurisdictional grounds in the course of the rulemaking proceedings. In its 1976 Order, the Commission rejected such comments on the ground that the regulations furthered objectives that it might properly pursue in its supervision over broadcasting. Specifically, the Commission maintained that its rules would promote “the achievement of long-standing communications regulatory objectives by increasing outlets for local self-expression and augmenting the public’s choice of programs.” 59 F. C. C. 2d, at 298. The Commission did not find persuasive the contention that “the access requirements are in effect common carrier obligations which are beyond our authority to impose.” Id., at 299. The explanation was: “So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been assigned jurisdiction we do not think they can be held beyond our authority merely by denominating them as somehow ‘common carrier’ in nature. The proper question, we believe, is not whether they fall in one category or another of regulation — whether they are more akin to obligations imposed on common carriers or obligations imposed on broadcasters to operate in the public interest— but whether the rules adopted promote statutory objectives.” Ibid. Additionally, the Commission denied that the rules violated the First Amendment, reasoning that when broadcasting or related activity by cable systems is involved First Amendment values are served by measures facilitating an exchange of ideas. On petition for review, the Eighth Circuit set aside the Commission’s access, channel capacity, and facilities rules as beyond the agency’s jurisdiction. 571 F. 2d 1025 (1978). The court was of the view that the regulations were not reasonably ancillary to the Commission’s jurisdiction over broadcasting, a jurisdictional condition established by past decisions of this Court. The rules amounted to an attempt to impose common-carrier obligations on cable operators, the court said, and thus ran counter to the statutory command that broadcasters themselves may not be treated as common carriers. See Communications Act of 1934, § 3 (h), 47 U. S. C. § 153 (h). Furthermore, the court made plain its belief that the regulations presented grave First Amendment problems. We granted certiorari, 439 U. S. 816 (1978), and we now affirm. II A The Commission derives its regulatory authority from the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq. The Act preceded the advent of cable television and understandably does not expressly provide for the regulation of that medium. But it is clear that Congress meant to confer “broad authority” on the Commission, H. R. Rep. No. 1850, 73d Cong., 2d Sess., 1 (1934), so as “to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission.” FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 138 (1940). To that end, Congress subjected to regulation “all interstate and foreign communication by wire or radio.” Communications Act of 1934, § 2 (a), 47 U. S. C. § 152 (a). In United States v. Southwestern Cable Co., we construed § 2 (a) as conferring on the Commission a circumscribed range of power to regulate cable television, and we reaffirmed that determination in United States v. Midwest Video Corp., 406 U. S. 649 (1972). The question now before us is whether the Act, as construed in these two cases, authorizes the capacity and access regulations that are here under challenge. The Southwestern litigation arose out of the Commission’s efforts to ameliorate the competitive impact on local broadcasting operations resulting from importation of distant signals by cable systems into the service areas of local stations. Fearing that such importation might “destroy or seriously degrade the service offered by a television broadcaster,” First Report and Order, 38 F. C. C. 683, 700 (1965), the Commission promulgated rules requiring CATV systems to carry the signals of broadcast stations into whose service area they brought competing signals, to avoid duplication of local station programming on the same day such programming was broadcast, and to refrain from bringing new distant signals into the 100 largest television markets unless first demonstrating that the service would comport with the public interest. See Second Report and Order, 2 F. C. C. 2d 725 (1966). The Commission's assertion of jurisdiction was based on its view that “the successful performance” of its duty to ensure “the orderly development of an appropriate system of local television broadcasting” depended upon regulation of cable operations. 392 U. S., at 177. Against the background of the administrative undertaking at issue, the Court construed § 2 (a) of the Act as granting the Commission jurisdiction over cable television “reasonably ancillary to the effective performance of the Commission’s various responsibilities for the regulation of television broadcasting.” 392 U. S., at 178. Soon after our decision in Southwestern, the Commission resolved “to condition the carriage of television broadcast signals... upon a requirement that the CATV system also operate to a significant extent as a local outlet by originating.” Notice of Proposed Rulemaking and Notice of Inquiry:, 15 F. C. C. 2d 417, 422 (1968). It stated that its “concern with CATV carriage of broadcast signals [was] not just a matter of avoidance of adverse effects, but extend [ed] also to requiring CATV affirmatively to further statutory policies.” Ibid. Accordingly, the Commission promulgated a rule providing that CATV systems having 3,500 or more subscribers may not carry the signal of any television broadcast station unless the system also operates to a significant extent as a local outlet by originating its own programs — or cablecasting — and maintains facilities for local production and presentation of programs other than automated services. 47 CFR § 74.1111 (a) (1970). This Court, by a 5-to-4 vote but without an opinion for the Court, sustained the Commission’s jurisdiction to issue these regulations in United States v. Midwest Video Corp., supra. Four Justices, in an opinion by Mr. Justice Brennan, reaffirmed the view that the Commission has jurisdiction over cable television and that such authority is delimited by its statutory responsibilities over television broadcasting. They thought that the reasonably-ancillary standard announced in Southwestern permitted regulation of CATV “with a view not merely to protect but to promote the objectives for which the Commission had been assigned jurisdiction over broadcasting.” 406 U. S., at 667. The Commission had reasonably determined, Mr. Justice Brennan’s opinion declared, that the origination requirement would “ ‘further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public’s choice of programs and types of services....’” Id., at 667-668, quoting First Report and Order, 20 F. C. C. 2d 201, 202 (1969). The conclusion was that the “program-origination rule [was] within the Commission’s authority recognized in Southwestern.” 406 U. S., at 670. The Chief Justice, in a separate opinion concurring in the result, admonished that the Commission’s origination rule “strain [ed] the outer limits” of its jurisdiction. Id., at 676. Though not “fully persuaded that the Commission ha[d] made the correct decision in [the] case,” he was inclined to defer to its judgment. Ibid. B Because its access and capacity rules promote the long-established regulatory goals of maximization of outlets for local expression and diversification of programming — the objectives promoted by the rule sustained in Midwest Video— the Commission maintains that it plainly had jurisdiction to promulgate them. Respondents, in opposition, view the access regulations as an intrusion on cable system operations that is qualitatively different from the impact of the rule upheld in Midwest Video. Specifically, it is urged that by requiring the allocation of access channels to categories of users specified by the regulations and by depriving the cable operator of the power to select individual users or to control the programming on such channels, the regulations wrest a considerable degree of editorial control from the cable operator and in effect compel the cable system to provide a kind of common-carrier service. Respondents contend, therefore, that the regulations are not only qualitatively different from those heretofore approved by the courts but also contravene statutory limitations designed to safeguard the journalistic freedom of broadcasters, particularly the command of § 3 (h) of the Act that “a person engaged in... broadcasting shall not... be deemed a common carrier.” 47 U. S. C. § 153 (h). We agree with respondents that recognition of agency jurisdiction to promulgate the access rules would require an extension of this Court’s prior decisions. Our holding in Midwest Video sustained the Commission’s authority to regulate cable television with a purpose affirmatively to promote goals pursued in the regulation of television broadcasting; and the plurality’s analysis of the origination requirement stressed the requirement’s nexus to such goals. But the origination rule did not abrogate the cable operators’ control over the composition of their programming, as do the access rules. It compelled operators only to assume a more positive role in that regard, one comparable to that fulfilled by television broadcasters. Cable operators had become enmeshed in the field of television broadcasting, and, by requiring them to engage in the functional equivalent of broadcasting, the Commission had sought “only to ensure that [they] satisfactorily [met] community needs within the context of their undertaking.” 406 U. S., at 670 (opinion of Brennan, J.). With its access rules, however, the Commission has transferred control of the content of access cable channels from •cable operators to members of the public who wish to communicate by the cable medium. Effectively, the Commission has relegated cable systems, pro tanto-, to common-carrier status. A common-carrier service in the communications context is one that “makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing... Report and Order, Industrial Radiolocation Service, Docket No. 16106, 5 F. C. C. 2d 197, 202 (1966); see National Association of Regulatory Utility Comm’rs v. FCC, 173 U. S. App. D. C. 413, 424, 525 F. 2d 630, 641, cert. denied, 425 U. S. 992 (1976); Multipoint Distribution Service, 45 F. C. C. 2d 616, 618 (1974). A common carrier does not “make individualized decisions, in particular cases, whether and on what terms to deal.” National Association of Regulatory Utility Comm’rs v. FCC, supra, at 424, 525 F. 2d, at 641. The access rules plainly impose common-carrier obligations on cable operators. Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis. 47 CFR §§ 76.254 (a), 76.256 (d) (1977), Operators are prohibited from determining or influencing the content of access programming. § 76.256 (b). And the rules delimit what operators may charge for access and use of equipment. § 76.256 (c). Indeed, in its early consideration of access obligations — whereby “CATV operators [would] furnish studio facilities and technical assistance [but] have no control over program content except as may be required by the Commission’s rules and applicable law” — the Commission acknowledged that the result would be the operation of cable systems “as common carriers on some channels.” First Report and Order in Docket No. 18397, 20 F. C. G. 2d, at 207; see id., at 202; Cable Television Report and Order, 36 F. C. C. 2d 143, 197 (1972). In its 1976 Order, the Commission did not directly deny that its access requirements compelled common carriage, and it has conceded before this Court that the rules “can be viewed as a limited form of common carriage-type obligation.” Brief for Petitioner in No. 77-1575, p. 39. But the Commission continues to insist that this characterization of the obligation imposed by the rules is immaterial to the question of its power to issue them ; its authority to promulgate the rules is assured, in the Commission’s view, so long as the rules promote statutory objectives. Congress, however, did not regard the character of regulatory obligations as irrelevant to the determination of whether they might permissibly be imposed in the context of broadcasting itself. The Commission is directed explicitly by § 3 (h) of the Act not to treat persons engaged in broadcasting as common carriers. We considered the genealogy and the meaning of this provision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973). The issue in that case was whether a broadcast licensee’s general policy of not selling advertising time to individuals or groups wishing to speak on issues important to them violated the Communications Act of 1934 or the First Amendment. Our examination of the legislative history of the Radio Act of 1927 — the precursor to the Communications Act of 1934— prompted us to conclude that “in the area of discussion of public issues Congress chose to leave broad journalistic discretion with the licensee.” 412 U. S., at 105. We determined, in fact, that “Congress specifically dealt with — and firmly rejected — the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues.” Ibid. The Court took note of a bill reported to the Senate by the Committee on Interstate Commerce providing in part that any licensee who permits “ ‘a broadcasting station to be used... for the discussion of any question affecting the public... shall make no discrimination as to the use of such broadcasting station, and with respect to said matters the licensee shall be deemed a common carrier in interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast.’ ” Id., at 106, quoting 67 Cong. Rec. 12503 (1926). That bill was amended to eliminate the common-carrier obligation because of the perceived lack of wisdom in “ ‘put [ting] the broadcaster under the hampering control of being a common carrier’ ” and because of problems in administering a nondiscriminatory right of access. 412 U. S., at 106; see 67 Cong. Rec. 12502, 12504 (1926). The Court further observed that, in enacting the 1934 Act, Congress rejected still another proposal “that would have imposed a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues.” 412 U. S., at 107-108. “Instead,” the Court noted, “Congress after prolonged consideration adopted § 3 (h), which specifically provides that ‘a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.’ ” Id., at 108-109. “Congress’ flat refusal to impose a 'common carrier’ right of access for all persons wishing to speak out on public issues,” id., at 110, was perceived as consistent with other provisions of the 1934 Act evincing “a legislative desire to preserve values of private journalism.” Id., at 109. Notable among them was § 326 of the Act, which enjoins the Commission from exercising “ 'the power of censorship over the radio communications or signals transmitted by any radio station,’ ” and commands that “ ‘no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.’ ” 412 U. S., at 110, quoting 47 U. S. C. § 326. The holding of the Court in Columbia Broadcasting was in accord with the view of the Commission that the Act itself did not require a licensee to accept paid editorial advertisements. Accordingly, we did not decide the question whether the Act, though not mandating the claimed access, would nevertheless permit the Commission to require broadcasters to extend a range of public access by regulations similar to those at issue here. The Court speculated that the Commission might have flexibility to regulate access, 412 U. S., at 122, and that “[cjonceivably at some future date Congress or the Commission — or the broadcasters — may devise some kind of limited right of access that is both practicable and desirable,” id., at 131. But this is insufficient support for the Commission’s position in the present case. The language of § 3 (h) is unequivocal; it stipulates that broadcasters shall not be treated as common carriers. As we see it, § 3 (h), consistently with the policy of the Act to preserve editorial control of programming in the licensee, forecloses any discretion in the Commission to impose access requirements amounting to common-carrier obligations on broadcast systems. The provision’s background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. It is difficult to deny, then, that forcing broadcasters to develop a “nondiscriminatory system for controlling access... is precisely what Congress intended to avoid through § 3 (h) of the Act.” 412 U. S., at 140 n. 9 (Stewart, J., concurring); see id., at 152, and n. 2 (Douglas, J., concurring in judgment). Of course, § 3 (h) does not explicitly limit the regulation of cable systems. But without reference to the provisions of the Act directly governing broadcasting, the Commission’s jurisdiction under § 2 (a) would be unbounded. See United States v. Midwest Video Corp., 406 U. S., at 661 (opinion of Brennan, J.). Though afforded wide latitude in its supervision over communication by wire, the Commission was not delegated unrestrained authority. The Court regarded the Commission’s regulatory effort at issue in Southwestern as consistent with the Act because it had been found necessary to ensure the achievement of the Commission’s statutory responsibilities. Specifically, regulation was imperative to prevent interference with the Commission’s work in the broadcasting area. And in Midwest Video the Commission had endeavored to promote long-established goals of broadcasting regulation. Petitioners do not deny that statutory objectives pertinent to broadcasting bear on what the Commission might require cable systems to do. Indeed, they argue that the Commission’s authority to promulgate the access rules derives from the relationship of those rules to the objectives discussed in Midwest Video. But they overlook the fact that Congress has restricted the Commission’s ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting. That limitation is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Cable operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include. As the Commission, itself, has observed, “both in their signal carriage decisions and in connection with their origination function, cable television systems are afforded considerable control over the content of the programming they provide.” Report and Order in Docket No. 20829, 69 F. C. C. 2d 1324, 1333 (1978). In determining, then, whether the Commission’s assertion of jurisdiction is “reasonably ancillary to the effective performance of [its] various responsibilities for the regulation of television broadcasting,” United States v. Southwestern Cable Co., 392 U. S., at 178, we are unable to ignore Congress’ stern disapproval — evidenced in § 3 (h) — of negation of the editorial discretion otherwise enjoyed by broadcasters and cable operators alike. Though the lack of congressional guidance has in the past led us to defer — albeit cautiously — to the Commission’s judgment regarding the scope of its authority, here there are strong indications that agency flexibility was to be sharply delimited. The exercise of jurisdiction in Midwest Video, it has been said, “strain [ed] the outer limits” of Commission authority. 406 U. S., at 676 (Burger, C. J., concurring in result). In light of the hesitancy with which Congress approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common-carrier basis, we are constrained to hold that the Commission exceeded those limits in promulgating its access rules. The Commission may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters. We think authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress. Affirmed. Systems in the top 100 markets and in operation prior to March 31, 1972, and other systems in operation by March 31, 1977, are given until June 21, 1986, to comply with the channel capacity and two-way communication requirements. 47 CFR § 76.252 (b) (1977). Activated channel capacity consists of the number of usable channels that the system actually provides to the subscriber’s home or that it could provide by making certain modifications to its facilities. 1976 Order, 59 F. C. C. 2d, at 315. The great majority of systems constructed in the major markets from 1962 to 1972 were designed with a 12-channel capacity. Often, additional channels may be activated by installing converters on subscribers’ home sets, albeit at substantial cost. See Notice of Proposed Ride Making, 53 F. C. C. 2d 782, 785 (1975). In determining the number of activated channels available for access use, channels already programmed by the cable operator for which a separate charge is made are excluded. Similarly, channels utilized for transmission of television broadcast signals are subtracted. The remaining channels deemed available for access use include channels provided to the subscriber but not programmed and channels carrying other nonbroadeast programming — such as programming originated by the system operator— for which a separate assessment is not made. 1976 Order, supra, at 315-316. The Commission has indicated that it will “not consider as acting in good faith an operator with a system of limited activated channel capability who attempts to displace existing access uses with his own origination efforts.” Id., at 316. Additionally, the Commission has stated that pay entertainment programming should not be “provided at the expense of local access efforts which are displaced. Should a system operator for example have only one complete channel available to provide access services we shall consider it as clear evidence of bad faith in complying with his access obligations if such operator decides to use that channel to provide pay programming.” Id., at 317. Cable systems in operation on June 21, 1976, that lack sufficient activated channel capacity to furnish one full channel for access purposes may meet their access obligations by providing whatever portions of channels that are available for such purposes. 47 CFR §76.254 (c) (1977). Systems initiated after that date, and existing systems desirous of adding a nonmandatory broadcast signal after that date, must supply one full channel for access use even if they must install converters to do so. See 1976 Order, supra, at 314-315. Cable systems were also required to promulgate rules prohibiting the transmission of obscene and indecent material on access channels. 47 CFR § 76.256 (d) (1977). The Court of Appeals for the District of Columbia Circuit stayed this aspect of the rules in an order filed in American Civil Liberties Union v. FCC, No. 76-1695 (Aug. 26, 1977). The court below, moreover, disapproved the requirement in the belief that it imposed censorship obligations on cable operators. The Commission has instituted a review of the requirement, and it is not now in controversy before this Court. In the court below, the American Civil Liberties Union (ACLU), petitioner in No. 77-1648, challenged the Commission’s modification of its 1972 access rules, which were less favorable to cable operators than are the regulations finally embraced. The ACLU requests that we remand these cases for further consideration of its challenge in the event that	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 37 ]	sc_adminaction
RAGSDALE et al. v. WOLVERINE WORLD WIDE, INC. No. 00-6029. Argued January 7, 2002 — Decided March 19, 2002 L. Oneal Sutter argued the cause for petitioners. With him on the briefs was Eric Schnapper. Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Howard M. Radzely, Allen H. Feldman, Nathaniel I. Spiller, and Ellen L. Beard. Richard D. Bennett argued the cause for respondent. With him on the brief was James Francis Barna Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations et al. by Jonathan P. Hiatt, James B. Coppess, Judith L. Lichtman, and Laurence Gold; and for the National Employment Lawyers Association et al. by Ronald B. Schwartz and Paula A. Brantner. Ann Elizabeth Reesman, Daniel V. Yager, Stephen A. Bokat, Robin S. Conrad, and Heather L. MacDougall filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging affirmance. Jack Whitacre filed a brief for Human Resource Management as ami-cus curiae. Justice Kennedy delivered the opinion of the Court. Qualifying employees are guaranteed 12 weeks of unpaid leave each year by the Family and Medical Leave Act of 1993 (FMLA or Act), 107 Stat. 6, as amended, 29 U. S. C. § 2601 et seq. (1994 ed. and Supp. V). The Act encourages businesses to adopt more generous policies, and many employers have done so. Respondent Wolverine World Wide, Inc., for example, granted petitioner Tracy Ragsdale 30 weeks of leave when cancer kept her out of work in 1996. Ragsdale nevertheless brought suit under the FMLA. She alleged that because Wolverine was in technical violation of certain Labor Department regulations, she was entitled to more leave. One of these regulations, 29 CFR § 825.700(a) (2001), did support Ragsdale’s claim. It required the company to grant her 12 more weeks of leave because it had not informed her that the 30-week absence would count against her FMLA entitlement. We hold that the regulation is contrary to the Act and beyond the Secretary of Labor’s authority. Rags-dale was entitled to no more leave, and Wolverine was entitled to summary judgment. I Ragsdale began working at a Wolverine factory in 1995, but in the following year she was diagnosed with Hodgkin’s disease. Her prescribed treatment involved surgery and months of radiation therapy. Though unable to work during this time, she was eligible for seven months of unpaid sick leave under Wolverine’s leave plan. Ragsdale requested and received a 1-month leave of absence on February 21, 1996, and asked for a 30-day extension at the end of each of the seven months that followed. Wolverine granted the first six requests, and Ragsdale missed 30 consecutive weeks of work. Her position with the company was held open throughout, and Wolverine maintained her health benefits and paid her premiums during the first six months of her absence. Wolverine did not notify her, however, that 12 weeks of the absence would count as her FMLA leave. In September, Ragsdale sought a seventh 30-day extension, but Wolverine advised her that she had exhausted her seven months under the company plan. Her condition persisted, so she requested more leave or permission to work on a part-time basis. Wolverine refused and terminated her when she did not come back to work. Ragsdale filed suit in the United States District Court for the Eastern District of Arkansas. Her claim relied on the Secretary’s regulation, which provides that if an employee takes medical leave “and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” 29 CFR § 825.700(a) (2001). The required designation had not been made, so Ragsdale argued that her 30 weeks of leave did “not count against [her] FMLA entitlement.” Ibid. It followed that when she was denied additional leave and terminated after 30 weeks, the statute guaranteed her 12 more weeks. She sought reinstatement, backpay, and other relief. When the parties filed cross-motions for summary judgment, Wolverine conceded it had not given Ragsdale specific notice that part of her absence would count as FMLA leave. It maintained, however, that it had complied with the statute by granting her 30 weeks of leave — more than twice what the Act required. The District Court granted summary judgment to Wolverine. In the court’s view the regulation was in conflict with the statute and invalid because, in effect, it required Wolverine to grant Ragsdale more than 12 weeks of FMLA-eompliant leave in one year. The Court of Appeals for the Eighth Circuit agreed. 218 F. 3d 933 (2000). We granted certiorari, 533 U. S. 928 (2001), and now affirm. II Wolverine’s challenge concentrates on the validity of a single sentence in § 825.700(a). This provision is but a small part of the administrative structure the Secretary devised pursuant to Congress’ directive to issue regulations “necessary to carry out” the Act. 29 U. S. C. § 2654 (1994 ed.). The Secretary’s judgment that a particular regulation fits within this statutory constraint must be given considerable weight. See United States v. O’Hagan, 521 U. S. 642, 673 (1997) (citing Batterton v. Francis, 432 U. S. 416, 424-426 (1977)). Our deference to the Secretary, however, has important limits: A regulation cannot stand if it is “ ‘arbitrary, capricious, or manifestly contrary to the statute.’” United States v. O’Hagan, supra, at 673 (quoting Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984)). To determine whether § 825.700(a) is a valid exercise of the Secretary’s authority, we must consult the Act, viewing it as a “symmetrical and coherent regulatory scheme.” Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995). The FMLA’s central provision guarantees eligible employees 12 weeks of leave in a 1-year period following certain events: a disabling health problem; a family member’s serious illness; or the arrival of a new son or daughter. 29 U. S. C. § 2612(a)(1). During the mandatory 12 weeks, the employer must maintain the employee’s group health coverage. § 2614(c)(1). Leave must be granted, when “medically necessary,” on an intermittent or part-time basis. § 2612(b)(1). Upon the employee’s timely return, the employer must reinstate the employee to his or her former position or an equivalent. § 2614(a)(1). The Act makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of” these rights, § 2615(a)(1), and violators are subject to consequential damages and appropriate equitable relief, § 2617(a)(1). A number of employers have adopted policies with terms far more generous than the statute requires. Congress encouraged as much, mandating in the Act’s penultimate provision that “[njothing in this Act . . . shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act.” §2653. Some employers, like Wolverine, allow more than the 12-week annual minimum; others offer paid leave. U. S. Dept, of Labor, D. Cantor et al., Balancing the Needs of Families and Employers: Family and Medical Leave Surveys 5-10,5-12 (2001) (22.9% of FMLA-covered establishments allow more than 12 weeks of leave per year; 62.7% provide paid disability leave). As long as these policies meet the Act’s minimum requirements, leave taken may be counted toward the 12 weeks guaranteed by the FMLA. See 60 Fed. Reg. 2230 (1995) (“[Ejmployers may designate paid leave as FMLA leave and offset the maximum entitlements under the employer’s more generous policies”). With this statutory structure in place, the Secretary issued regulations requiring employers to inform their workers about the relationship between the FMLA and leave granted under company plans. The regulations make it the employer’s responsibility to tell the employee that an absence will be considered FMLA leave. 29 CFR § 825.208(a) (2001). Employers must give written notice of the designation, along with detailed information concerning the employee’s rights and responsibilities under the Act, “within a reasonable time after notice of the need for leave is given by the employee — within one or two business days if feasible.” § 825.301(c). The regulations are in addition to a notice provision explicitly set out in the statute. Section 2619(a) requires employers to “keep posted, in conspicuous places . . . , a notice . . . setting forth excerpts from, or summaries of, the pertinent provisions of this subchapter and information pertaining to the filing of a charge.” According to the Secretary, the more comprehensive and individualized notice required by the regulations is necessary to ensure that employees are aware of their rights when they take leave. See 60 Fed. Reg. 2220 (1995). We need not decide today whether this conclusion accords with the text and structure of the FMLA, or whether Congress has instead “spoken to the precise question” of notice, Chevron, supra, at 842, and so foreclosed the notice regulations. Even assuming the additional notice requirement is valid, the categorical penalty the Secretary imposes for its breach is contrary to the Act’s remedial design. The penalty is set out in a separate regulation, §825.700, which is entitled “What if an employer provides more generous benefits than required by the FMLA?” This is the sentence on which Ragsdale relies: “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” 29 CFR § 825.700(a) (2001). This provision punishes an employer’s failure to provide timely notice of the FMLA designation by denying it any credit for leave granted before the notice. The penalty is unconnected to any prejudice the employee might have suffered from the employer’s lapse. If the employee takes an undesignated absence of 12 weeks or more, the regulation always gives him or her the right to 12 more weeks of leave that year. The fact that the employee would have acted in the same manner if notice had been given is, in the Secretary’s view, irrelevant. Indeed, as we understand the Secretary’s position, the employer would be required to grant the added 12 weeks even if the employee had full knowledge of the FMLA and expected the absence to count against the 12-week entitlement. An employer who denies the employee this additional leave will be deemed to have violated the employee’s rights under §2615 and so will be liable for damages and equitable relief under §2617. The categorical penalty is incompatible with the FMLA’s comprehensive remedial mechanism. To prevail under the cause of action set out in §2617, an employee must prove, as a threshold matter, that the employer violated §2615 by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, § 2617 provides no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost “by reason of the violation,” § 2617(a)(l)(A)(i)(I), for other monetary losses sustained “as a direct result of the violation,” §2617(a)(l)(A)(i)(II), and for “appropriate” equitable relief, including employment, reinstatement, and promotion, § 2617(a)(1)(B). The remedy is tailored to the harm suffered. Cf. EEOC v. Waffle House, Inc., 534 U. S. 279,292-293 (2002) (provisions in Title VII stating that plaintiffs “may recover” damages and “appropriate” equitable relief “refer to the trial judge’s discretion in a particular case to order reinstatement and award damages in an amount warranted by the facts of that case”). Section 825.700(a), Ragsdale contends, reflects the Secretary’s understanding that an employer’s failure to comply with the designation requirement might sometimes burden an employee’s exercise of basic FMLA rights in violation of § 2615. Consider, for instance, the right under § 2612(b)(1) to take intermittent leave when medically necessary. An employee who undergoes cancer treatments every other week over the course of 12 weeks might want to work during the off weeks, earning a paycheck and saving six weeks for later. If she is not informed that her absence qualifies as FMLA leave — and if she does not know of her right under the statute to take intermittent leave — she might take all 12 of her FMLA-guaranteed weeks consecutively and have no leave remaining for some future emergency. In circumstances like these, Ragsdale argues, the employer’s failure to give the notice required by the regulation could be said to “deny,” “restrain,” or “interfere with” the employee’s exercise of her right to take intermittent leave. This position may be reasonable, but the more extreme one embodied in § 825.700(a) is not. The penalty provision does not say that in certain situations an employer’s failure to make the designation will violate §2615 and entitle the employee to additional leave. Rather, the regulation establishes an irrebuttable presumption that the employee’s exercise of FMLA rights was impaired — and that the employee deserves 12 more weeks. There is no empirical or logical basis for this presumption, as the facts of this case well demonstrate. Ragsdale has not shown that she would have taken less leave or intermittent leave if she had received the required notice. As the Court of Appeals noted — and Ragsdale did not dispute in her petition for certiorari— “Ragsdale’s medical condition rendered her unable to work for substantially longer than the FMLA twelve-week period.” 218 F. 3d, at 940. In fact her physician did not clear her to work until December, long after her 30-week leave period had ended. Even if Wolverine had complied with the notice regulations, Ragsdale still would have taken the entire 30-week absence. Blind to this reality, the Secretary’s provision required the company to grant Ragsdale 12 more weeks of leave — and rendered it liable under § 2617 when it denied her request and terminated her. The challenged regulation is invalid because it alters the FMLA’s cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. In the case at hand, the regulation permitted Ragsdale to bring suit under § 2617, despite her inability to show that Wolverine’s actions restrained her exercise of FMLA rights. Section 825.700(a) transformed the company’s failure to give notice — along with its refusal to grant her more than 30 weeks of leave — into an actionable violation of §2615. This regulatory sleight of hand also entitled Ragsdale to reinstatement and back-pay, even though reinstatement could not be said to be “appropriate” in these circumstances and Ragsdale lost no compensation “by reason of” Wolverine’s failure to designate her absence as FMLA leave. By mandating these results absent a showing of consequential harm, the regulation worked an end run around important limitations of the statute’s remedial schemé. In defense of the regulation, the Government notes that a categorical penalty requiring the employer to grant more leave is easier to ádminister than one involving a fact-specific inquiry into what steps the employee would have taken had the employer given the required notice. “Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority fin a manner that is inconsistent with the administrative structure that Congress enacted into law.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U. S. 495, 517 (1988)). By its nature, the remedy created by Congress requires the retrospective, case-by-case examination the Secretary now seeks to eliminate. The purpose of the cause of action is to permit a court to inquire into matters such as whether the employee would have exercised his or her FMLA rights in the absence of the employer’s actions. To determine whether damages and equitable relief are appropriate under the FMLA, the judge or jury must ask what steps the employee would have taken had circumstances been different — considering, for example, when the employee would have returned to work after taking leave. Though the Secretary could not enact rules purporting to make these kinds of determinations for the courts, § 825.700(a) has this precise effect. For this reason, the Government’s reliance upon Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), is misplaced. Just as the FMLA does not itself require employers to give individualized notice, see supra, at 88, the Truth in Lending Act did not itself require lenders to make certain disclosures mandated by the regulation at issue in Mourning. In sustaining the regulation, we observed that the disclosure requirement was not contrary to the statute and that the Federal Reserve Board’s rulemaking authority was much broader than the Secretary’s is here. See 411 U. S., at 361-362 (quoting 15 U. S. C. §1604 (1970 ed.) (empowering the Board to issue regulations not only necessary “to carry out the purposes of [the statute],” but also “necessary or proper ... to prevent circumvention or evasion [of the statute], or to facilitate compliance therewith”)). The crucial distinction, however, is that although we referred to the Board’s regulation as a “remedial measure,” 411 U. S., at 371, the disclosure requirement was in fact enforced through the statute’s pre-existing remedial scheme and in a manner consistent with it. The Board simply assessed violators the $100 minimum statutory fine applicable to lenders who failed to make required disclosures. See id., at 376. In contrast, § 825.700(a) enforces the individualized notice requirement in a way that contradicts and undermines the FMLA’s preexisting remedial scheme. While §2617 says that employees must prove impairment of their statutory rights and resulting harm, the Secretary’s regulation instructs the courts to ignore this command. Our previous decisions, Mourning included, do not authorize agencies to contravene Congress’ will in this manner. Furthermore, even if the Secretary were authorized to reconfigure the FMLA’s cause of action for her administrative convenience, this particular rule would be an unreasonable choice. As we have noted in other contexts, categorical rules — such as the rule of per se antitrust illegality — reflect broad generalizations holding true in so many cases that inquiry into whether they apply to the case at hand would be needless and wasteful. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 50, n. 16 (1977); Eastman Kodak Co. v. Image Technical Services, Inc., 504 U. S. 451, 486-487 (1992) (Scalia, J., dissenting). When the generalizations fail to hold in the run of cases — when, for example, a particular restraint of trade does not usually present a pronounced risk of injury to competition — the justification for the categorical rule disappears. See, e. g., State Oil Co. v. Khan, 522 U. S. 3, 8-22 (1997) (rejecting per se ban on vertical maximum price fixing). That said, the generalization made by the Secretary’s categorical penalty — that the proper redress for an employer’s violation of the notice regulations is a full 12 more weeks of leave — holds true in but few cases. The employee who would have taken the absence anyway, of course, would need no more leave; but the regulation provides 12 additional weeks. Even the employee who would have chosen to work on an intermittent basis — say, every other week, see supra, at 89-90 — could claim an entitlement not to 12 weeks of leave but instead to the 6 weeks he or she would not have taken. To be sure, 12 more weeks might be an appropriate make-whole remedy for an employee who would not have taken any leave at all if the notice had been given. It is not a “fair assumption,” United States v. O’Hagan, 521 U. S., at 676, however, that this fact pattern will occur in any but the most exceptional of cases. To the extent the Secretary’s penalty will have no substantial relation to the harm suffered by the employee in the run of cases, it also amends the FMLA’s most fundamental substantive guarantee — the employee’s entitlement to “a total of 12 workweeks of leave during any 12-month period.” § 2612(a)(1). Like any key term in an important piece of legislation, the 12-week figure was the result of compromise between groups with marked but divergent interests in the contested provision. Employers wanted fewer weeks; employees wanted more. See H. R. Rep. No. 102-135, pt. 1, p. 37 (1991). Congress resolved the conflict by choosing a middle ground, a period considered long enough to serve “the needs of families” but not so long that it would upset “the legitimate interests of employers.” § 2601(b). Courts and agencies must respect and give effect to these sorts of compromises. Mohasco Corp. v. Silver, 447 U. S. 807, 818-819 (1980). The Secretary’s chosen penalty subverts the careful balance, for it gives certain employees a right to more than 12 weeks of FMLA-compliant leave in a given 1-year period. This is so in part because the employee will often enjoy every right guaranteed by the FMLA during part or all of an undesignated absence. Under the Secretary’s regulations, moreover, employers must comply with the FMLA’s minimum requirements during these un-designated periods. See, e.g., 29 CFR § 825.208(c) (2001) (an employee on paid leave “is subject to the full protections of the Act” during “the absence preceding the notice to the employee of the [FMLA] designation”). Here, the Secretary required Wolverine to maintain Ragsdale’s health benefits for at least 12 weeks of her 30-week absence; if it had not, Ragsdale could have sued. The penalty provision, in turn, required the company to grant Ragsdale 12 more weeks after the 30 weeks had passed. Section 2654 merely authorizes the Secretary to issue rules “necessary to carry out” the Act, but these regulations extended Wolverine’s liability far beyond the 12-week total guaranteed by the statute. It is no answer to say, as the Government does, that the Secretary’s provision is consistent with the Act because employers must provide more than 12 weeks of leave only when they do not comply with the individualized notice requirement. If this argument carried the day, a penalty of 24 weeks— or 36, or 48 — would also be permissible. Just as those provisions would be contrary to the FMLA’s 12-week mandate, so is § 825.700(a). That the Secretary’s penalty is disproportionate and inconsistent with Congress’ intent is evident as well from the sole notice provision in the Act itself. As noted above, § 2619 directs employers to post a general notice informing employees of their FMLA rights. See supra, at 88. This provision sets out its own penalty for noncompliance: “Any employer that willfully violates this section may be assessed a civil monetary penalty not to exceed $100 for each separate offense.” § 2619(b). Congress believed that a $100 fine, enforced by the Secretary, was the appropriate penalty for willful violations of the only notice requirement specified in the statute. The regulation, in contrast, establishes a much heavier sanction, enforced not by the Secretary but by employees, for both willful and inadvertent violations of a supplemental notice requirement. Section 825.700(a) is also in considerable tension with the statute’s admonition that “[n]othing in this Act. . . shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act.” §2653. The FMLA was intended to pull certain employers up to the minimum standard, but Congress was well aware of the danger that it might push more generous employers down to the minimum at the same time. Technical rules and burdensome administrative requirements, Congress knew, might impose unforeseen liabilities and discourage employers from adopting policies that varied much from the basic federal requirements. Although § 825.700(a) itself is directed toward employers “providing] more generous benefits than required by the FMLA,” its severe and across-the-board penalty could cause employers to discontinue these voluntary programs. Compliance with the designation requirement is easy enough for companies meeting only the minimum federal requirements: All leave is given the FMLA designation. Matters are quite different for companies like Wolverine, which offer more diverse and expansive options to their employees. In addition to allowing more than 12 weeks of leave per year, these employers might also provide leave for non-FMLA reasons, or to employees who are not yet FMLA eligible — leave the Secretary may not permit to be designated as FMLA leave. See, e. g., 60 Fed. Reg. 2230 (1995) (“Leave granted under circumstances that do not meet . . . specified reasons for FMLA-qualifying leave may not be counted against [the] FMLA’s 12-week entitlement”). Those employers must decide, almost as soon as leave is requested, whether to designate the absence as FMLA leave. The answer might not always be obvious, and this decision may require substantial investigation. The regulation imposes a high price for a good-faith but erroneous characterization of an absence as non-FMLA leave, and employers like Wolverine might well conclude that the simpler, less generous route is the preferable one. These considerations persuade us that § 825.700(a) effects an impermissible alteration of the statutory framework and cannot be within the Secretary’s power to issue regulations “necessary to carry out” the Act under §2654. In so holding we do not decide whether the notice and designation requirements are themselves valid or whether other means of enforcing them might be consistent with the statute. Whatever the bounds of the Secretary’s discretion on this matter, they were exceeded here. The FMLA guaranteed Ragsdale 12 — not 42 — weeks of leave in 1996. The judgment of the Court of Appeals is affirmed. It is so ordered.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 70 ]	sc_adminaction
BLUM, COMMISSIONER, NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES v. STENSON No. 81-1374. Argued January 11, 1984 Decided March 21, 1984 Powell, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 902. Melvyn R. Leventhal, Deputy First Assistant Attorney General of New York, argued the cause for petitioner. With him on the briefs were Robert Abrams, Attorney General, Dennis H. Allee, First Assistant Attorney General, Peter H. Schiff, George D. Zuckerman, Deputy Solicitor General, and Marion R. Buchbinder and Frederick K. Mehlman, Assistant Attorneys General. Leon Silverman argued the cause for respondent. With him on the brief were Kalman Finkel, Arthur J. Fried, John E. Kirklin, and Linda R. Blumkin. Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Deputy Assistant Attorney General Kuhl, Joshua I. Schwartz, William Ranter, and Mark W. Pennak; for the State of Alabama et al. by Kenneth 0. Eikenberry, Attorney General of Washington, and Thomas F. Carr, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, JohnD. Ashcroft of Missouri, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kim-melman of New Jersey, Rufus L. Edmisten of North Carolina, Robert 0. Wefald of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Michael Turpén of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Chauncey H. Browning of West Virginia, Bronson C. La Fol-lette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Judith S. Yogman and Carl Valvo, Assistant Attorneys General. Briefs of amici curiae urging affirmance were filed for the Alliance for Justice by Laura Macklin; for the California Coalition of Welfare Rights Organizations by Mary S. Burdick and Rickard A. Rothschild; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Jack Green-berg, James M. Nabrit III, Charles Stephen Ralston, Steven L. Winter, Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, Norman J. Chachkin, E. Richard Larson, Burt Neubome, Kenneth Kimerling, Joaquin G. Avila, and Morris J. Bailer; for the National Education Association et al. by Michael H. Gottesman, Robert M. Weinberg, Julia Penny Clark, Robert H. Chanin, and Lawrence A. Poltrock; for the New York State Bar Association et al. by Haliburton Fales II; and for Oliver Hill et al. by Armand Derfner and Stephen P. Berzon. Justice Powell delivered the opinion of the Court. Title 42 U. S. C. § 1988 (1976 ed., Supp. V) provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hensley v. Eckerhart, 461 U. S. 424 (1983). Adjustments to that fee then may be made as necessary in the particular case. The two issues in this case are whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates, and whether, and under what circumstances, an upward adjustment of an award based on prevailing market rates is appropriate under § 1988. I A This suit was brought in 1978 by respondent on behalf of a statewide class of Medicaid recipients pursuant to 42 U. S. C. § 1983 in the District Court for the Southern District of New York. Under New York law, one who is eligible to receive benefits under the Supplemental Security Income (SSI) program, 42 U. S. C. § 1381 et seq. (1976 ed. and Supp. V), automatically is eligible to receive Medicaid benefits. N. Y. Soc. Serv. Law § 363 et seq. (McKinney 1976). Prior to this suit, persons who qualified for Medicaid in this fashion automatically lost their benefits if they thereafter became ineligible for SSI payments. The case was decided on cross-motions for summary judgment after only one set of plaintiff’s interrogatories had been served and answered. On these motions, the District Court certified the class and rendered final judgment in favor of the class. The court enjoined the prior practice of automatic termination of benefits, and prescribed procedural rights for the certified class that included “(a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1335 (1979). The Court of Appeals for the Second Circuit affirmed in an unpublished oral opinion from the bench. Affirmance order, Stenson v. Blum, 628 F. 2d 1345, cert. denied, 449 U. S. 885 (1980). Respondent’s subsequent request for an award of reasonable attorney’s fees under § 1988 is the subject of the present case. B Throughout this litigation, respondent was represented by attorneys from the Legal Aid Society of New York, a private nonprofit law office. In November 1980, respondent filed a request for attorney’s fees for the period December 1978 through the end of the litigation. Her three attorneys sought payment for some 809 hours of work at rates varying from $95 to $105 per hour. This amounted to approximately $79,312. Respondent’s total fee request, however, reflected a 50% increase in that fee. In her brief to the District Court, respondent explained that such an increase was necessary to compensate for the complexity of the case, the novelty of the issues, and the “great benefit” achieved. The total requested fee amounted to approximately $118,968. Petitioner opposed the fee award on the grounds that the rates were exorbitant, the number of hours charged were unreasonable and duplicative, and the 50% “bonus” was improper. Petitioner submitted no evidence to support her claim that the hours and rates charged by respondent were unreasonable. Instead, petitioner rested her claim that the hours were duplicative and excessive and the rates exorbitant on arguments contained in her brief to the District Court and on that court’s discretion. Petitioner requested an eviden-tiary hearing on the issue of reasonable billable hours only if the District Court found that the discussion in her brief did not justify reductions in the number of hours charged. Finally, petitioner argued that the 50% “bonus” requested by respondent was improper because it would be paid by the public. The District Court held that both the hours expended and the rates charged were reasonable. It also held that the fee calculated by multiplying the number of hours times the hourly rates should be increased by the requested 50% because of the quality of representation, the complexity of the issues, the riskiness of success, and the “great benefit to a large class” that was achieved. 512 F. Supp. 680, 685 (1981). The District Court awarded the plaintiff class the requested fee of $118,968. The Court of Appeals affirmed in an unpublished opinion. No. 81-7385 (CA2, Oct. 19, 1981). Affirmance order, 671 F. 2d 493 (1981). We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney’s fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates. 461 U. S. 956 (1983). hH I — I Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under § 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under § 1988 be calculated according to the cost of providing legal services ráther than according to the prevailing market rate. The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He argues that market rates reflect the level of compensation necessary to attract profit-making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates “confer an unjustified windfall or subsidy upon legal services organizations.” Brief for United States as Amicus Curiae 6. Resolution of these two arguments begins and ends with an interpretation of the attorney’s fee statute. The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney’s fee to prevailing civil rights litigants. In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes: “It is intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N. C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. None of these four cases made any mention of a cost-based standard. Petitioner’s argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of § 1988. It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD ¶9444 (CD Cal. 1974), make this explicit. In Stanford Daily, the court held that it “must avoid... decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” 64 F. R. D., at 681. In Davis, the court held: “In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel... are employed by... a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” 8 EPD, at 5048-5049. We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of “windfall profits” it expressly intended to prohibit. The statute and legislative history establish that “reasonable fees” under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel. The policy arguments advanced in favor of a cost-based standard should be addressed to Congress rather than to this Court. Ill We address now the second question presented: whether a 50% upward adjustment in the fee was — as petitioner argues — an abuse of discretion by the District Court. Petitioner makes two separate but related arguments. First, she asserts that a reasonable attorney’s fee is calculated by multiplying the reasonable number of hours expended times a reasonable hourly rate and that any upward adjustment of that fee is improper. In the alternative, she argues that the 50% upward adjustment in this case constitutes a clear abuse of discretion. A Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear. In actions to enforce federal civil rights, § 1988 authorizes a court, “in its discretion,” to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The legislative history explains that “a reasonable attorney’s fee” is one that is “adequate to attract competent counsel, but... [that does] not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). As noted, the Senate Report identified four cases that had calculated correctly a reasonable attorney’s fee. In Hensley v. Eckerhart, 461 U. S. 424 (1983), we reviewed the cases cited in the legislative history of § 1988 and concluded that the “product of reasonable hours times a reasonable rate” normally provides a “reasonable” attorney’s fee within the meaning of the statute. Id., at 434. Hensley also recognized that “in some cases of exceptional success an enhanced award may be justified.” Id., at 435. In view of our recognition that an enhanced award may be justified “in some cases of exceptional success,” we cannot agree with petitioner’s argument that an “upward adjustment” is never permissible. The statute requires a “reasonable fee,” and there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high. When, however, the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee contemplated by § 1988. B The issue remaining is the appropriateness of an upward adjustment to the fee award in this case. The burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant. The record before us contains no evidence supporting an upward adjustment to fees calculated under the basic standard of reasonable rates times reasonable hours. The affidavits of respondent’s attorneys do not claim, or even mention, entitlement to a bonus or upward revision. Respondent’s brief to the District Court merely states in conclusory fashion that an upward adjustment to the fee is necessary because the issues were novel, the litigation was complex, and the results were of far-reaching significance to a large class of people. The District Court, without elaboration, accepted these conclu-sory reasons for approving the upward adjustment and supplied additional reasons of its own. In awarding the 50% increase, the court referred to the complexity of the litigation, the novelty of the issues, the high quality of representation, the “great benefit” to the class, and the “riskiness” of the lawsuit. The Court of Appeals, in affirming, shed no light on why it thought this substantial upward adjustment was appropriate. In a single sentence, it simply repeated the unsupported conclusions of the District Court. The reasons offered by the District Court to support the upward adjustment do not withstand examination. The novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel and thus do not warrant an upward adjustment in a fee based on the number of billable hours times reasonable hourly rates. There may be cases, of course, where the experience and special skill of the attorney will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue. In those cases, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates. Neither complexity nor novelty of the issues, therefore, is an appropriate factor in determining whether to increase the basic fee award. The District Court, having tried the case, was in the best position to conclude that “the quality of representation was high.” In view of the reputation of the Legal Aid Society and its staff, we have no doubt that this was true. The “quality of representation,” however, generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.” See Hensley, 461 U. S., at 435. Respondent offered no such evidence in this case, and on this record the District Court’s rationale for providing an upward adjustment for quality of representation is a clear example of double counting. In justifying the high hourly rates used to calculate the fee award, the District Court explained: “The rates requested here are consonant with fee awards in cases of similar complexity and difficulty.... [T]hey are fair in view of these attorneys^] experience and expertise.... The quality of work performed by counsel throughout this case was high. In view of all these considerations, I do not find the requested rates, from $95 per hour to $105 per hour, excessive.” 512 F. Supp., at 683. In justifying the upward adjustment to the fee award, the District Court merely restated these same two factors: “The quality of representation was high. The litigation was complex.” Id., at 685. Not only has respondent failed to show that the hourly rates failed to provide a reasonable fee for the quality of representation provided, but she candidly concedes that the “fees awarded [to her attorneys] may be at the upper end of the market for awards under § 1988... Brief for Respondent 42. Absent specific evidence to the contrary, we cannot say that rates from $95 per hour to $105 per hour for these three attorneys do not fully reflect the quality of their representation. The 50% upward adjustment also was based in part on the District Court’s determination that the ultimate outcome of the litigation “was of great benefit to a large class of needy people.” 512 F. Supp., at 685. The court did not explain, however, exactly how this determination affected the fee award. “Results obtained” is one of the 12 factors identified in Johnson v. Georgia Highway Express, 488 F. 2d, at 718, as relevant to the calculation of a reasonable attorney’s fee. It is “particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Hensley, supra, at 434 (fee award must be reduced by the number of hours spent on unsuccessful claims). Because acknowledgment of the “results obtained” generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award. Neither the District Court’s opinion nor respondent’s briefs have identified record evidence that shows that the benefit achieved requires an upward adjustment to the fee. Finally, the District Court included among its reasons for an upward adjustment a statement that the “issues presented were novel and the undertaking therefore risky.” 512 F. Supp., at 685. Absent any claim in the affidavits or briefs submitted in support of respondent’s fee request, seeking such an adjustment, we cannot be sure what prompted the court’s statement. Nowhere in the affidavits submitted in support of respondent’s fee request, nor in her brief to the District Court, did respondent identify any risks associated with the litigation or claim that the risk of nonpayment required an upward adjustment to provide a reasonable fee. On this record, therefore, any upward adjustment for the contingent nature of the litigation was unjustified. In sum, we reiterate what was said in Hensley: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” 461 U. S., at 435. We therefore reject petitioner’s argument that an upward adjustment to an attorney’s fee is never appropriate under § 1988. On the record before us, however, respondent established only that hourly rates ranging from $95 per hour to $105 per hour for the full 809.75 hours billed were reasonable. This resulted in a charge of $79,312. Respondent introduced no evidence that enhancement was necessary to provide fair and reasonable compensation. She therefore has failed to carry her burden of justifying entitlement to an upward adjustment. On this record, we conclude that the fee of $79,312 was “fully compensatory.” Accordingly, the judgment below is reversed only insofar as the fee award was increased by the sum of $39,656, and is otherwise affirmed. It is so ordered. Medicaid is a program providing medical assistance to the needy. It is jointly funded by the State and Federal Governments. 42 U. S. C. §§ 1396-1396k (1976 ed., Supp. V); N. Y. Soc. Serv. Law §§363-369 (McKinney 1976). The certified class consisted of: “New York State residents who received Medicaid due to their eligibility for SSI and whose Medicaid benefits have been terminated because of subsequent ineligibility for SSI without having received one or more of the following: (a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1336 (1979). The Legal Aid Society, based in New York City, is a private, nonprofit law office dedicated since 1876 to providing legal representation to persons who cannot afford a lawyer. It may well be the oldest formally organized legal aid society in the United States. It enjoys a wide reputation for the devotion of its staff and the quality of its service. We are told that some three-fourths of the budget of its Civil Division is funded by nongovernmental contributors. See The Legal Aid Society 1983 Annual Report 49-52. Ann Moynihan billed 487 hours and 50 minutes at $95 per hour. 512 F. Supp. 680, 682 (1981). She graduated from law school in 1977, and at the outset of this litigation, she had l'/z years of experience as a practicing attorney. App. 320-321. Paula Galowitz billed 166 hours and 15 minutes at $100 per hour. 512 F. Supp., at 682. She graduated from law school in 1976 and served as a law clerk to a state judge during her first year after graduation. She had IV2 years of experience as a practicing attorney at the Legal Aid Society at the outset of this litigation. App. 335. Arthur Fried billed 155 hours and 40 minutes at $105 per hour. 512 F. Supp., at 682. (The parties agree that the 115 hours noted in the District Court’s table is a typographical error.) He graduated from law school in 1975 and served as a law clerk to a United States District Court Judge for the first two years thereafter. He had 17a years experience as a practicing attorney at the Legal Aid Society at the outset of litigation. App. 308-309. Petitioner does not renew here her argument that the hourly rates claimed by respondent’s counsel were out of line with the “prevailing market rate” for private counsel of comparable experience, skill, and reputation. Petitioner claims only that hourly rates for § 1988 fee awards should be based on cost rather than on prevailing market rates. See Brief for Petitioner 12-13,15-21. We decline to consider petitioner’s further argument that the hours charged by respondent’s counsel were unreasonable. As noted above, petitioner failed to submit to the District Court any evidence challenging the accuracy and reasonableness of the hours charged, see Hensley v. Eckerhart, 461 U. S. 424, 437, and n. 12 (1983), or the facts asserted in the affidavits submitted by respondent’s counsel. She therefore waived her right to an evidentiary hearing in the District Court. See City of Detroit v. Grinnell Corp., 495 F. 2d 448, 472-473 (CA2 1974) (where facts are disputed, an evidentiary hearing is required before a district court determines a proper attorney’s fee award). In view of the trial strategy she chose, petitioner waived her right to challenge in this Court the District Court’s determination that the number of hours billed were reasonable for cases of similar complexity. Petitioner specifically proposes that fees be based on “the cost of providing [legal] services plus, where appropriate, a margin for profit.” Brief for Petitioner 17. Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983,1986, and 1986 of this title..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Accord H. R. Rep. No. 94-1558, p. 8 (1976). See Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 718 (CA5 1974) (“The customary fee for similar work in the community should be considered”); Stanford Daily v. Zurcher, 64 F. R. D. 680, 682 (ND Cal. 1974) (“[In making the fee award,] the court will consider... the value of the [attorney’s] time in light of billing rates...”); Davis v. County of Los Angeles, 8 EPD ¶ 9444, at 5048 (CD Cal. 1974) (fee award calculated by multiplying number of hours expended times the “normal hourly rates” for attorneys of like skill and experience); Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483, 486 (WDNC 1975) (fee award calculated with reference to hourly rates generally charged in federal litigation). Congress was legislating in light of experience when it enacted the 1976 fee statute. By that time, courts were familiar with calculating fee awards for civil litigation under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(k), and under the judicially established “private attorney general” theory that had prevailed prior to this Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). None of the cases decided at that time had adopted a cost-based approach to calculating fees. Reference to market rate was uniform. See, e. g., Waters v. Wisconsin Steel Works, 502 F. 2d 1309, 1322 (CA7 1974), cert. denied, 425 U. S. 997 (1976); Evans v. Sheraton Park Hotel, 164 U. S. App. D. C. 86, 96, 503 F. 2d 177, 187 (1974); Tillman v. Wheaton-Haven Recreation Assn., Inc., 517 F. 2d 1141, 1148 (CA4 1975); Kerr v. Screen Extras Guild, Inc., 526 F. 2d 67, 69-70 (CA9 1975), cert. denied sub nom. Perkins v. Screen Extras Guild, Inc., 425 U. S. 951 (1976). We recognize, of course, that determining an appropriate “market rate” for the services of a lawyer is inherently difficult. Market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community. The type of services rendered by lawyers, as well as their experience, skill, and reputation, varies extensively — even within a law firm. Accordingly, the hourly rates of lawyers in private practice also vary widely. The fees charged often are based on the product of hours devoted	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
LITTON FINANCIAL PRINTING DIVISION, A DIVISION OF LITTON BUSINESS SYSTEMS, INC. v. NATIONAL LABOR RELATIONS BOARD et al. No. 90-285. Argued March 20, 1991 Decided June 13, 1991 M. J. Diederich argued the cause and filed briefs for petitioner. Deputy Solicitor General Wallace argued the cause for the federal respondent in support of petitioner pursuant to this Court’s Rule 12.4. With him on the briefs were Solicitor General Starr, Michael R. Lazerwitz, Norton J. Come, Linda Sher, and David A. Fleischer. David A. Rosenfeld argued the cause for the private respondent. With him on the brief were Victor J. Van Bourg, Marsha S. Berzon, Steven J. Kaplan, and Laurence Gold. John S. Irving and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. Justice Kennedy delivered the opinion of the Court. This case requires us to determine whether a dispute over layoffs which occurred well after expiration of a collective-bargaining agreement must be said to arise under the agreement despite its expiration. The question arises in the context of charges brought by the National Labor Relations Board (Board), alleging an unfair labor practice in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. §§ 158(a)(1) and (5). We interpret our earlier decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977). ► — I Petitioner Litton operated a check printing plant in Santa Clara, California. The plant utilized both coldtype and hot-type printing processes. Printing Specialties & Paper Products Union No. 777, Affiliated With District Council No. 1 (Union), represented the production employees at the plant. The Union and Litton entered into a collective-bargaining agreement (Agreement) which, with extensions, remained in effect until October 3, 1979. Section 19 of the Agreement is a broad arbitration provision: “Differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, the construction to be placed on any clause or clauses of the Agreement shall be determined by arbitration in the manner hereinafter set forth.” App. 34. Section 21 of the Agreement sets forth a two-step grievance procedure, at the conclusion of which, if a grievance cannot be resolved, the matter may be submitted for binding arbitration. Id., at 35. Soon before the Agreement was an sought decertification of the Union. The Board conducted an election on August 17, 1979, in which the Union prevailed by a vote of 28 to 27. On July 2, 1980, after much postelection legal maneuvering, the Board issued a decision to certify the Union. No contract negotiations occurred during this period of uncertainty over the Union’s status. Litton decided to test the by refusing to bargain with the Union. The Board rejected Litton’s position and found its refusal to bargain an unfair labor practice. Litton Financial Printing Division, 256 N. L. R. B. 516 (1981). Meanwhile, Litton had decided to eliminate its coldtype operation at the plant, and in late August and early September 1980, laid off 10 of the 42 persons working in the plant at that time. The laid off employees worked either primarily or exclusively with the coldtype operation, and included 6 of the 11 most senior employees in the plant. The layoffs occurred without any notice to the Union. The Union filed identical grievances on behalf of each laid off employee, claiming a violation of the Agreement, which had provided that “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” App. 30. Litton refused to submit to the grievance and arbitration procedure or to negotiate over the decision to lay off the employees, and took a position later interpreted by the Board as a refusal to arbitrate under any and all circumstances. It offered instead to negotiate concerning the effects of the layoffs. On November 24, 1980, the General Counsel for the Board issued a complaint alleging that Litton’s refusal to process the grievances amounted to an unfair labor practice within the meaning of §§ 8(a)(1) and (5) of the NLRA, 29 U. S. C. §§ 158(a)(1) and (5). App. 15. On September 4, 1981, an Administrative Law Judge found that Litton had violated the NLRA by failing to process the grievances. Id., at 114-115. Relying upon the Board’s decision in American Sink Top & Cabinet Co., 242 N. L. R. B. 408 (1979), the Administrative Law Judge went on to state that if the grievances remained unresolved at the conclusion of the grievance process, Litton could not refuse to submit them to arbitration. App. 115— 118. The Administrative Law Judge held also that Litton violated §§ 8(a)(1) and (5) when it bypassed the Union and paid severance wages directly to the 10 laid off employees, and Litton did not contest that determination in further proceedings. Over six years later, the Board affirmed in part and reversed in part the decision of the Administrative Law Judge. 286 N. L. R. B. 817 (1987). The Board found that Litton had a duty to bargain over the layoffs and violated § 8(a) by failing to do so. Based upon well-recognized Board precedent that the unilateral abandonment of a contractual grievance procedure upon expiration of the contract violates §§ 8(a)(1) and (5), the Board held that Litton had improperly refused to process the layoff grievances. See Bethlehem Steel Co., 136 N. L. R. B. 1500, 1503 (1962), enforced in pertinent part, 320 F. 2d 615 (CA3 1963). The Board proceeded to apply its recent decision in Indiana & Michigan Electric Co., 284 N. L. R. B. 53 (1987), which contains the Board’s current understanding of the principles of postexpiration arbitrability and of our opinion in Nolde Brothers, Inc. v. Bakery Workers, supra. The Board held that Litton’s “wholesale repudiation” of its obligation to arbitrate any contractual grievance after the expiration of the Agreement also violated §§ 8(a)(1) and (5), as the Agreement’s broad arbitration clause lacked “language sufficient to overcome the obligation to arbitrate imposed by the contract extended to disputes arising under the contract and occurring after the contract had expired. Thus, [Litton] remained ‘subject to a potentially viable contractual commitment to arbitrate even after the [Agreement] expired.’” 286 N. L. R. B., at 818 (citation omitted). Litton did not seek review of, and we do not address here, the Board’s determination that Litton committed an unfair labor practice by its unilateral abandonment of the grievance process and wholesale repudiation of any postexpiration obligation to arbitrate disputes. In fashioning a remedy, on arbitrability of these particular layoff grievances. Following Indiana & Michigan, the Board declared its determination to order arbitration “only when the grievances at issue ‘arise under’ the expired contract.” 286 N. L. R. B., at 821 (citing Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977)). In finding that the dispute about layoffs was outside this category, the Board reasoned as follows: “The conduct that triggered the grievances... occurred after the contract had expired. The right to layoff by seniority if other factors such as ability and experience are equal is not ‘a right worked for or accumulated over time.’ Indiana & Michigan, supra at 61. And, as in Indiana & Michigan Electric, there is no indication here that ‘the parties contemplated that such rights could ripen or remain enforceable even after the contract expired.’ Id. (citation omitted). Therefore, [Litton] had no contractual obligation to arbitrate the grievances.” 286 N. L. R. B., at 821-822. Although the Board refused to order arbitration, it did order Litton to process the grievances through the two-step griev-anee procedure, to bargain with the Union over the layoffs, and to provide a limited backpay remedy. The Board sought enforcement of its order, and both the Union and Litton petitioned for review. The Court of Appeals enforced the Board’s order, with the exception of that portion holding the layoff grievances not arbitrable. 893 F. 2d 1128 (CA9 1990). On that question, the Court of Appeals was willing to “assume without deciding that the Board’s Indiana & Michigan decision is a reasonably defensible construction of the section 8(a)(5) duty to bargain.” Id., at 1137. The court decided, nevertheless, that the Board had erred, because the right in question, the right to layoff in order of seniority if other things such as aptitude and ability are equal, did arise under the Agreement. The Court of Appeals thought the Board’s contrary conclusion was in conflict with two later Board decisions, where the Board had recognized that seniority rights may arise under an expired contract, United Chrome Products, Inc., 288 N. L. R. B. 1176 (1988), and Uppco, Inc., 288 N. L. R. B. 937 (1988). The court cited a second conflict, one between Indiana & Michigan and the court’s own interpretation of Nolde Bros. in Local Joint Executive Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F. 2d 1159 (CA9 1986). In Royal Center, the Court of Appeals had rejected the argument that only rights accruing or vesting under a contract prior to termination are covered by the posttermination duty to arbitrate. Id., at 1163. Litton petitioned for a writ of certiorari. Because of substantial disagreement as to the proper application of our decision in Nolde Brothers, we granted review limited to the question of arbitrability of the layoff grievances. 498 U. S. 966 (1990). II A Sections 8(a)(5) and 8(d) of the NLRA, 29 U. S. C. §§ 158(a) (5) and (d), require an employer to bargain “in good faith with respect to wages, hours, and other terms and conditions of employment.” The Board has taken the position that it is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations. The Board has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment. See NLRB v. Katz, 369 U. S. 736 (1962). In Katz the union was newly certified and the parties had yet to reach an initial agreement. The Katz doctrine has been extended as well to cases where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed. See, e. g., Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539, 544, n. 6 (1988). Numerous terms and conditions of employment have been held to be the subject of mandatory bargaining under the NLRA. See generally 1 C. Morris, The Developing Labor Law 772-844 (2d ed. 1983). Litton does not question that arrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining. See id., at 813 (citing cases); United States Gypsum Co., 94 N. L. R. B. 112, 131 (1951). The Board has ruled that most mandatory subjects of bargaining are within the Katz prohibition on unilateral changes. The Board has identified some terms and conditions of employment, however, which do not survive expiration of an agreement for purposes of this statutory policy. For instance, it is the Board’s view that union security and dues check-off provisions are excluded from the unilateral change doctrine because of statutory provisions which permit these obligations only when specified by the express terms of a collective-bargaining agreement. See 29 U. S. C. § 158(a)(3) (union security conditioned upon agreement of the parties); § 186(c)(4) (dues check-off valid only until termination date of agreement); Indiana & Michigan, 284 N. L. R. B., at 55 (quoting Bethlehem Steel, 136 N. L. R. B., at 1502). Also, in recognition of the statutory right to strike, no-strike clauses are excluded from the unilateral change doctrine, except to the extent other dispute resolution methods survive expiration of the agreement. See 29 U. S. C. §§ 158(d)(4), 163 (union’s statutory right to strike); Southwestern Steel & Supply, Inc. v. NLRB, 257 U. S. App. D. C. 19, 23, 806 F. 2d 1111, 1114 (1986). In Hilton-Davis Chemical Co., 185 N. L. R. B. 241 (1970), the Board determined that arbitration clauses are excluded from the prohibition on unilateral changes, reasoning that the commitment to arbitrate is a “voluntary surrender of the right of final decision which Congress... reserved to [the] parties.... [Arbitration is, at bottom, a consensual surrender of the economic power which the parties are otherwise free to utilize.” Id., at 242. The Board further relied upon our statements acknowledging the basic federal labor policy that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582 (1960). See also 29 U. S. C. § 173(d) (phrased in terms of parties’ agreed-upon method of dispute resolution under an existing bargaining agreement). Since Hilton-Davis, the Board has adhered to the view that an arbitration clause does not, by operation of the NLRA as interpreted in Katz, continue in effect after expiration of a collective-bargaining agreement. B The Union argues that we should reject the Board’s decision in Hilton-Davis Chemical Co., and instead hold that arbitration provisions are within Katz’ prohibition on unilateral changes. The unilateral change doctrine, and the exclusion of arbitration from the scope of that doctrine, represent the Board’s interpretation of the NLRA requirement that parties bargain in good faith. And “[i]f the Board adopts a rule that is rational and consistent with the Act... then the rule is entitled to deference from the courts.” Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987); see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 786-787 (1990). We think the Co. is both rational and consistent with the Act. The rule is grounded in the strong statutory principle, found in both the language of the NLRA and its drafting history, of consensual rather than compulsory arbitration. See Indiana & Michigan, supra, at 57-58; Hilton-Davis Chemical Co., supra. The rule conforms with our statement that “[n]o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so.” Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374 (1974). We reaffirm today that under the NLRA arbitration is a matter of consent, and that it will not be imposed upon parties beyond the scope of their agreement. In the absence of a binding method for resolution of post-expiration disputes, a party may be relegated to filing unfair labor practice charges with the Board if it believes that its counterpart has implemented a unilateral change in violation of the NLRA. If, as the Union urges, parties who favor labor arbitration during the term of a contract also desire it to resolve postexpiration disputes, the parties can consent to that arrangement by explicit agreement. Further, a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until the parties bargain to impasse. Unlike the Union’s suggestion that we impose arbitration of postexpiration disputes upon parties once they agree to arbitrate disputes arising under a contract, these, alternatives would reinforce the statutory policy that arbitration is not compulsory. I — I f — I I — I The Board argues that it is entitled to substantial deference here because it has determined the remedy for an unfair labor practice. As noted above, we will uphold the Board’s interpretation of the NLRA so long as it is “rational and consistent with the Act.” Fall River Dyeing & Finishing Corp. v. NLRB, supra, at 42. And we give the greatest latitude to the Board when its decision reflects its “‘difficult and delicate responsibility’ of reconciling conflicting interests of labor and management,” NLRB v. J. Weingarten, Inc., 420 U. S. 251, 267 (1975). We have accorded the Board considerable authority to structure its remedial orders to effect the purposes of the NLRA and to order the relief it deems appropriate. See Shepard v. NLRB, 459 U. S. 344, 352 (1983); Virginia Electric & Power Co. v. NLRB, 319 U. S. 533, 540 (1943). The portion of does discuss the appropriate remedy for a violation of the NLRA. But it does not follow that we must accord the same deference we recognized in Virginia Electric & Power Co. and Shepard. Here, the Board’s remedial discussion is not grounded in terms of any need to arbitrate these grievances in order “to effectuate the policies of the Act.” Virginia Electric & Power Co., supra, at 540. Rather, the Board’s decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement, applying our decision in Nolde Brothers and the federal common law of collective-bargaining agreements. The Board now defends its decision on the ground that it need not “reflexively order that which a complaining party may regard as ‘complete relief’ for every unfair labor practice,” Shepard v. NLRB, supra, at 352; but its decision did not purport to rest upon such grounds. Although the bargaining agreements in the context of unfair labor practice adjudication, see NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967), the Board is neither the sole nor the primary source of authority in such matters. “Arbitrators and courts are still the principal sources of contract interpretation.” NLRB v. Strong, 393 U. S. 357, 360-361 (1969). Section 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185, “authorizes federal courts to fashion a body of federal law for the enforcement of... collective bargaining agreements.” Textile Workers v. Lincoln Mills of Alabama, 353 U. S. 448, 451 (1957) (emphasis added). We would risk the development of conflicting principles were' we to defer to the Board in its interpretation of the contract, as distinct from its devising a remedy for the unfair labor practice that follows from a breach of contract. We cannot accord deference in contract interpretation here only to revert to our independent interpretation of collective-bargaining agreements in a case arising under § 301. See Local Union 1395, Int’l Brotherhood of Electrical Workers v. NLRB, 254 U. S. App. D. C. 360, 363-364, 797 F. 2d 1027, 1030-1031 (1986). IV The duty not to effect unilateral changes in most terms and conditions of employment, derived from the statutory command to bargain in good faith, is not the sole source of possible constraints upon the employer after the expiration date of a collective-bargaining agreement. A similar duty may arise as well from the express or implied terms of the expired agreement itself. This, not the provisions of the NLRA, was the source of the obligation which controlled our decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977). We now discuss that precedent in the context of the case before us. In Nolde Brothers, a union brought suit under § 301 of the LMRA, 29 U. S. C. § 185, to compel arbitration. Four days after termination of a collective-bargaining agreement, the employer decided to cease operations. The employer settled employee wage claims, but refused to pay severance wages called for in the agreement, and declined to arbitrate the resulting dispute. The union argued that these wages “were in the nature of‘accrued’ or ‘vested’ rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment.” Nolde Brothers, 430 U. S., at 248. We agreed that “whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract.” Id., at 249 (emphasis in original). We acknowledged that “the arbitration duty is a creature of the collective-bargaining agreement” and that the matter of arbitrability must be determined by reference to the agreement, rather than by compulsion of law. Id., at 250-251. With this understanding, we held that the extensive obligation to arbitrate under the contract in question was not consistent with an interpretation that would eliminate all duty to arbitrate as of the date of expiration. That argument, we noted, “would preclude a order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract’s term.” Id., at 251. We found “strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract,” id., at 253, and noted that “the parties’ failure to exclude from arbitrability contract disputes arising after termination... affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship,” id., at 255. We found a presumption in favor of postexpiration arbitration of matters unless “negated expressly or by clear implication,” ibid., but that conclusion was limited by the vital qualification that arbitration was of matters and disputes arising out of the relation governed by contract. A Litton argues that provisions contained in the Agreement rebut the Nolde Brothers presumption that the duty to arbitrate disputes arising under an agreement outlasts the date of expiration. The Agreement provides that its stipulations “shall be in effect for the time hereinafter specified,” App. 22, in other words, until the date of expiration and no longer. The Agreement’s no-strike clause, which Litton characterizes as a quid pro quo for arbitration, applies only “during the term of this [a]greement,” id., at 34. Finally, the Agreement provides for “interest arbitration” in case the parties are unable to conclude a successor agreement, id., at 53-55, proving that where the parties wished for arbitration other than to resolve disputes as to contract interpretation, they knew how to draft such a clause. These arguments cannot prevail. The Agreement’s unlimited arbitration clause, by which the parties agreed to arbitrate all “[djifferences that may arise between the parties” regarding the Agreement, violations thereof, or “the construction to be placed on any clause or clauses of the Agreement,” id., at 34, places it within the precise rationale of Nolde Brothers. It follows that if a dispute arises under the contract here in question, it is subject to arbitration even in the postcontract period. B With these matters resolved, we come to the crux of our inquiry. We agree with the approach of the Board and those courts which have interpreted Nolde Brothers to apply only where a dispute has its real source in the contract. The object of an arbitration clause is to implement a contract, not to transcend it. Nolde Brothers does not announce a rule that postexpiration grievances concerning terms and conditions of employment remain arbitrable. A rule of that sweep in fact would contradict the rationale of Nolde Brothers. The Nolde Brothers presumption is limited to disputes arising under the contract. A postexpiration grievance can be said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement. Any other reading of Nolde Brothers seems to assume that postexpiration terms and conditions of employment which coincide with the contractual terms can be said to arise under an expired contract, merely because the contract would have applied to those matters had it not expired. But that interpretation fails to recognize that an expired contract has by its own terms released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied. Although after expiration most terms and conditions of employment are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract. See Office and Professional Employees Ins. Trust Fund v. Laborers Funds Administrative Office of Northern California, Inc., 783 F. 2d 919, 922 (CA9 1986) ("An expired [collective-bargaining agreement]... is no longer a ‘legally enforceable document’” (citation omitted)); cf. Derrico v. Sheehan Emergency Hosp., 844 F. 2d 22, 25-27 (CA2 1988) (Section 301 of the LMRA, 29 U. S. C. § 185, does not provide for federal court jurisdiction where a bargaining agreement has expired, although rights and duties under the expired agreement “retain legal significance because they define the status quo” for purposes of the prohibition on unilateral changes). The difference is as elemental as that between Nolde Brothers and Katz. Under Katz, terms and conditions continue in effect by operation of the NLRA. They are no longer agreed-upon terms; they are terms imposed by law, at least so far as there is no unilateral right to change them. As the Union acknowledges, the obligation not to make unilateral changes is “rooted not in the contract but in preservation of existing terms and conditions of employment and applies before any contract has been negotiated.” Brief for Respondent Union 34, n. 21. Katz illustrates this point with utter clarity, for in Katz the employer was barred from imposing unilateral changes even though the parties had yet to execute their first collective-bargaining agreement. Our decision in Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539 (1988), further demonstrates the distinction between contractual obligations and postexpiration terms imposed by the NLRA. There, a bargaining agreement required employer contributions to a pension fund. We assumed that under Katz the employer’s failure to continue contributions after expiration of the agreement could constitute an unfair labor practice, and if so the Board could enforce the obligation. We rejected, however, the contention that such a failure amounted to a violation of the ERISA obligation to make contributions “under the terms of a collectively bargained agreement... in accordance with the terms and conditions of... such agreement.” 29 U. S. C. § 1145. Any postexpiration obligation to contribute was imposed by the NLRA, not by the bargaining agreement, and so the District Court lacked jurisdiction under § 502(g)(2) of ERISA, 29 U. S. C. § 1132(g)(2), to enforce the obligation. As with the obligation to make pension contributions in Advanced Lightweight Concrete Co., other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective-bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract’s arbitration provisions. See United Steelworkers of America v. Fort Pitt Steel Casting, Division of Conval-Penn, Inc., 598 F. 2d 1273 (CA3 1979) (agreement provided for continuing medical benefits in the event of postexpiration labor dispute). Finally, as we found in sions relating to remedies and dispute resolution — for example, an arbitration provision — may in some cases survive in order to enforce duties arising under the contract. Nolde Brothers’ statement to that effect under § 301 of the LMRA is similar to the rule of contract interpretation which might apply to arbitration provisions of other commercial contracts. We presume as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement. C The Union, and Justice Stevens’ dissent, argue that we err in reaching the merits of the issue whether the post-termination grievances arise under the expired agreement because, it is said, that is an issue of contract interpretation to be submitted to an arbitrator in the first instance. Whether or not a company is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a party cannot be forced to “arbitrate the arbitrability question.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 651 (1986). We acknowledge that where an effective bargaining agreement exists between the parties, and the agreement contains a broad arbitration clause, “there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 81 ]	sc_adminaction
UNITED STATES v. FIRST NATIONAL BANK & TRUST CO. OF LEXINGTON et al. No. 36. Argued March 4-5, 1964. Decided April 6, 1964. Daniel M. Friedman argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Larry L. Williams, Melvin Spaeth and Richard J. Wertheimer. Robert M. Odear argued the cause for appellees. With him on the brief were Gladney Harville, Rufus Lisle and Clinton M. Harbison. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Justice Black. This is a civil suit in which the United States charges that the consolidation of First National Bank and Trust Co. of Lexington, Kentucky (First National), and Security Trust Co. of Lexington (Security Trust), to form First Security National Bank and Trust Co. (First Security), constitutes a combination in restraint of trade and commerce in violation of § 1 of the Sherman Act and a combination and an attempt to monopolize trade and commerce in violation of § 2 of that Act. 26 Stat. 209 as amended, 15 U. S. C. §§ 1, 2. The plan of consolidation was submitted to the Comptroller of the Currency and he, pursuant to the provision of the Bank Merger Act of 1960, 74 Stat. 129, 12 U. S. C. (Supp. IY) § 1828 (c), requested and received reports of the probable competitive effects of the proposed consolidation from the Attorney General, the Federal Deposit Insurance Corp., and the Board of Governors of the Federal Reserve System. Each report concluded that the consolidation would adversely affect competition among commercial banks in Fayette County. Nevertheless, the Comptroller of the Currency approved the consolidation on February 27, 1961; it was effected March 1, and this Sherman Act suit was filed the same day. The District Court, while agreeing that the Comptroller of the Currency’s approval of the consolidation did not render it immune from challenge under the Sherman Act, held that no violation of that Act had been shown. 208 F. Supp. 457. The case is here on direct appeal. 15 U. S. C. § 29. We noted probable jurisdiction. 374 U. S. 824. We agree with the District Court that commercial banking is one relevant market for determining the § 1 issue in the case. In Fayette County commercial banks are the only financial institutions authorized to receive demand deposits and to offer checking accounts. They are also the only financial institutions in the county that accept time deposits from partnerships and corporations and that make single-payment loans to individuals and commercial and industrial loans to businesses. Moreover, commercial banks offer a wider variety of financial services than the other financial institutions, e. g., deposit boxes, Christmas Clubs, correspondent bank facilities, collection services, and trust department services. We also agree with the District Court that the consolidation should be judged in light of its effect on competition in Fayette County. The record establishes that here, as in United States v. Philadelphia National Bank, 374 U. S. 321, the “factor of inconvenience” does indeed localize banking competition “as effectively as high transportation costs in other industries.” 374 U. S., at 358. Practically all of the business of the banks in Lexington originates in Fayette County. Only 4.8% of First National’s demand deposit accounts and 4.5% of Security Trust’s were held by depositors who did not maintain offices in Lexington. In dollar volume the percentage was 2.8 for each bank. Apart from large national companies, businesses in the area are restricted to the Fayette County banks for their working capital loans; and commercial banks outside Lexington do a negligible amount of business in the county. There is also a negligible amount of competition from corporate fiduciaries outside Fayette County. We turn then to the facts relevant to the alleged restraint of trade under the Sherman Act. Prior to the consolidation the relative size of First National as compared to its five competitors was as follows: Assets Deposits Loans First National..... 39.83% 40.06% 40.22% Citizens Union..... 17.06 16.78 16.41 Bank of Commerce 12.99 13.32 14.46 Security Trust..... 12.87 11.88 13.98 Central Bank...... 9.14 9.66 8.85 Second National... 8.10 8.30 6.09 The bank established by the consolidation was. larger than all the remaining banks combined: Assets Deposits Loans First Security.................... 52.70% 51.95% 54.20% Citizens Union.................... 17.06 16.78 16.41 Bank of Commerce............... 12.99 13.32 14.46 Central Bank..................... 9.14 9.66 8.85 Second National.................. 8.10 8.30 6.09 Prior to the consolidation, First National and Security Trust had been close competitors in the trust department business. Between them they held 94.82% of all trust assets, 92.20% of all trust department earnings, and 79.62% of all trust accounts: Trust Assets Trust Dept. Earnings Number of Trust Accounts Security Trust..................... 50.55% 46.91% 54.31% First National.................... 44.27 45.29 25.31 Citizens Union................... 3.41 4.21 16.01 Second National.................. 1.33 .63 2.12 Bank of Commerce.................44 2.96 2.26 There was here no “predatory” purpose. But we think it clear that significant competition will be eliminated by the consolidation. There is testimony in the record from three of the four remaining banks that the consolidation will seriously affect their ability to compete effectively over the years; that the “image” of “bigness” is a powerful attraction to customers, an advantage that increases progressively with disparity in size; and that the multiplicity of extra services in the trust field which the new company could offer tends to foreclose competition there. We think it clear that the elimination of significant competition between First National and Security Trust constitutes an unreasonable restraint of trade in violation of § 1 of the Sherman Act. The case, we think, is governed by Northern Securities Co. v. United States, 193 U. S. 197, and its progeny. The Northern Pacific and the Great Northern operated parallel lines west of Chicago. A holding company acquired the controlling stock in each company. A violation of § 1 was adjudged without reference to or a determination of the extent to which the traffic of the combined roads was still subject to some competition. It was enough that the two roads competed, that their competition was not insubstantial, and that the combination put an end to it. Id., at 326-328. United States v. Union Pacific R. Co., 226 U. S. 61, was in the same tradition. Acquisition by Union Pacific of a controlling stock interest in Southern Pacific was held to violate § 1 of the Sherman Act. As in the Northern Securities case the Court held the combination illegal because of the elimination of the inter se competition between the merging companies, without reference to the strength or weakness of whatever competition remained. The Court said: “It is urged that this competitive traffic was infinitesimal when compared with the gross amount of the business transacted by both roads, and so small as only to amount to that incidental restraint of trade which ought not to be held to be within the law; but we think the testimony amply shows that, while these roads did a great deal of business for which they did not compete and that the competitive business was a comparatively small part of the sum total of all trafile, state and interstate, carried over them, nevertheless such competing trafile was large in volume, amounting to many millions of dollars. Before the transfer of the stock this traffic was the subject of active competition between these systems, but by reason of the power arising from such transfer it has since been placed under a common control. It was by no means a negligible part, but a large and valuable part, of interstate commerce which was thus directly affected.” Id., at 88-89. United States v. Reading Co., 253 U. S. 26, is the third of the series. There a holding company brought under common control two competing interstate carriers and two competing coal companies. That was held “without more” to be a violation of §§ 1 and 2 of the Sherman Act. Id., at 59. The fourth of the series is United States v. Southern Pacific Co., 259 U. S. 214, in which the acquisition by Southern Pacific of stock of Central Pacific — a connecting link for transcontinental shipments by a competitor of Southern Pacific — was held to violate the Sherman Act. In reference to the earlier cases the Court said: “These cases, collectively, establish that one system of railroad transportation cannot acquire another, nor a substantial and vital part thereof, when the effect of such acquisition is to suppress or materially reduce the free and normal flow of competition in the channels of interstate trade.” Id., at 230-231. We need not go so far here as we went in United States v. Yellow Cab Co., 332 U. S. 218, 225, where we said: “. . . the amount of interstate trade thus affected by the conspiracy is immaterial in determining whether a violation of the Sherman Act has been charged in the complaint. Section 1 of the Act outlaws unreasonable restraints on interstate commerce, regardless of the amount of the commerce affected.” The four railroad cases at least stand for the proposition that where merging companies are major competitive factors in a relevant market, the elimination of significant competition between them, by merger or consolidation, itself constitutes a violation of § 1 of the Sherman Act. That standard was met in the present case in view of the fact that the two banks in question had such a large share of the relevant market. It is said that United States v. Columbia Steel Co., 334 U. S. 495, is counter to this view. There the United States Steel Corp. acquired the assets of Consolidated Steel Corp. Both made fabricated structural steel products, the former selling on a nation-wide basis, the latter in 11 States. The conclusion that the acquisition was lawful was reached after the CourLobserved, inter alia, that because of rate structures and the location oTUmted States Steel’s fabricating subsidiaries, the latter were unable to compete effectively in Consolidated’s market. Id., at 511-518, 529-530. The Columbia Steel case must be confined to its special facts. The Court said: “In determining what constitutes unreasonable restraint, we do not think the dollar volugnojis^in itself of compelling significance; we look rather to the percentage of business controlled, the strength of the remaining competition, whether the action springs from business requirements or purpose to monopolize, the probable development of the industry, consumer demands, and other characteristics of the market. We do not undertake to prescribe any set of percentage figures by which to measure the reasonableness of a corporation’s enlargement of its activities by the purchase of the assets of a competitor. The relative effect of percentage-command of a market varies with the setting in which that factor is placed.” Id., at 527-528. In the present case all those factors clearly point the other way, as we have seen. Where, as here, the merging companies are major competitive factors in a relevant market, the elimination of significant competition between them constitutes a violation of § 1 of the Sherman Act. In view of ourcraclusion~ulider § 1 of the Sherman Act, we do not reach the questions posed under § 2. Reversed. Mr. Justice Brennan and Mr. Justice White agree with the Court that the elimination of competition between the two banks in the circumstances here presented was a violation of § 1 of the Sherman Act. They would rest the reversal, however, solely on the conclusion that the factors relied on in United States v. Columbia Steel Co., 334 U. S. 495, 527-528, quoted by the Court, as applied to the facts of this case, clearly compel the reversal. Sections 1 and 2 of the Sherman Act provide in pertinent part: “Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. . . . “Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor. . . .” That issue was put to rest by United States v. Philadelphia National Bank, 374 U. S. 321, 350-355. In view of our disposition of the case we find it unnecessary to determine whether trust department services alone are another relevant market. Small loan companies make personal loans of $800 or less at interest rates higher than those charged by commercial banks. Since commercial banks carry a large volume of demand deposits, their real estate loans are generally of a shorter duration than those offered by savings and loan associations or insurance companies. The Federal Deposit Insurance Corp. and the Federal Reserve Board used Fayette County as the geographical market, the latter saying that “since there are no concentrations of population in other counties close enough to create competition with other banks, the competitive effects of the proposed consolidation would be confined to the Lexington banks.” Two of which had been decided after Standard Oil Co. v. United States, 221 U. S. 1, which announced “the rule of reason.”	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 16 ]	sc_adminaction
REPUBLICAN PARTY OF MINNESOTA et al. v. WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL STANDARDS, et al. No. 01-521. Argued March 26, 2002 Decided June 27, 2002 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. O’Connor, J., post, p. 788, and Kennedy, J., post, p. 792, filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 797. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined, post, p. 803. James Bopp, Jr., argued the cause for petitioners Republican Party of Minnesota et al. With him on the briefs were Thomas J. Marzen, Richard E. Coleson, and Ronald D. Rotunda. William F. Mohrman and Erick G. Kaardal filed briefs for petitioners Wersal et al. Alan I. Gilbert, Chief Deputy and Solicitor General of Minnesota, argued the cause for respondents. With him on the brief were Mike Hatch, Attorney General, Kristine L. Eiden, Deputy Attorney General, and Julie Ralston Aoki, Mark B. Levinger, and Thomas C. Vasaly, Assistant Attorneys General. Briefs of amici curiae urging reversal were filed for the American Center for Law and Justice by Jay Alan Sekulow, James H. Henderson, Sr., Colby M. May, and Walter M. Weber; for the American Civil Liberties Union et al. by David B. Isbell, David H. Remes, and Steven R. Shapiro; for the Chamber of Commerce of the United States by Jan Witold Bar an and Stephen A. Bokat; for Minnesota State Representative Philip Krinkie et al. by Raymond C. Ortman, Jr.; for Public Citizen by Allison M. Zieve, David C. Vladeck, and Scott L. Nelson; and for State Supreme Court Justices by Erik S. Jaffe. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, and Manuel M. Medeiros, State Solicitor, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, W. A. Drew Edmond-son of Oklahoma, Hardy Myers of Oregon, John Cornyn of Texas, and Christine 0. Gregoire of Washington; for the Ad hoc Committee of Former Justices and Friends Dedicated to an Independent Judiciary by S. Shawn Stephens and Andy Taylor; for the American Bar Association by Robert E. Hirshon, Reagan Wm. Simpson, and Warren S. Huang; for the Minnesota State Bar Association by Wayne D. Struble; for the Brennan Center for Justice at NYU School of Law et al. by Scott Bales and Deborah Goldberg; for the Conference of Chief Justices by Roy A. Schotland, George T. Patton, Jr., Sarah Steele Riordan, and Robert F. Bauer; for the Missouri Bar by Joseph C. Blanton, Jr.; and for Pennsylvanians for Modern Courts by Edmund B. Spaeth, Jr., and Brett G. Sweitzer. Briefs of amici curiae were filed for the Idaho Conservation League et al. by John D. Echeverría; and for the National Association of Criminal Defense Lawyers by David W. Ogden, Jonathan J. Frankel, Neil M. Richards, and Lisa Kemler. Justice Scalia delivered the opinion of the Court. The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues. h — I Since Minnesota’s admission to the Union in 1858, the State’s Constitution has provided for the selection of all state judges by popular election. Minn. Const., Art. VI, §7. Since 1912, those elections have been nonpartisan. Act of June 19, ch. 2,1912 Minn. Laws Special Sess., pp. 4-6. Since 1974, they have been subject to a legal restriction which states that a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial Conduct, is known as the “announce clause.” Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Minn. Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002). Lawyers who run for judicial office also must comply with the announce clause. Minn. Rule of Professional Conduct 8.2(b) (2002) (“A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct”). Those who violate it are subject to, inter alia, disbarment, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002). In 1996, one of the petitioners, Gregory Wersal, ran for associate justice of the Minnesota Supreme Court. In the course of the campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint against Wersal challenging, among other things, the propriety of this literature was filed with the Office of Lawyers Professional Responsibility, the agency which, under the direction of the Minnesota Lawyers Professional Responsibility Board, investigates and prosecutes ethical violations of lawyer candidates for judicial office. The Lawyers Board dismissed the complaint; with regard to the charges that his campaign materials violated the announce clause, it expressed doubt whether the clause could constitutionally be enforced. Nonetheless, fearing that further ethical complaints would jeopardize his ability to practice law, Wersal withdrew from the election. In 1998, Wersal ran again for the same office. Early in that race, he sought an advisory opinion from the Lawyers Board with regard to whether it planned to enforce the announce clause. The Lawyers Board responded equivocally, stating that", although it had significant doubts about the constitutionality of the provision, it was unable to answer his question because he had not submitted a list of the announcements he wished to make. Shortly thereafter, Wersal filed this lawsuit in Federal District Court against respondents, seeking, inter alia, a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. 63 F. Supp. 2d 967 (Minn. 1999). Over a dissent by Judge Beam, the United States Court of Appeals for the Eighth Circuit affirmed. Republican Party of Minn. v. Kelly, 247 F. 3d 854 (2001). We granted certio-rari. 534 U. S. 1054 (2001). II Before considering the constitutionality of the announce clause, we must be clear about its meaning. Its text says that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). We know that “announcing]... views” on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate’s mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called “pledges or promises” clause, which separately prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office,” ibid. — a prohibition that is not challenged here and on which we express no view. There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that “[t]he Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense.” App. 37. It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking “[s]hould we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?” Ibid. It criticized a decision striking down a state law restricting welfare benefits, asserting that “[fit’s the Legislature which should set our spending policies.” Ibid. And it criticized a decision requiring public financing of abortions for poor women as “unprecedented” and a “pro-abortion stance.” Id., at 38. Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board’s opinion in upholding the announce clause, 247 F. 3d, at 882, and the Minnesota Supreme Court recently embraced the Eighth Circuit’s interpretation, In re Code of Judicial Conduct, 639 N. W. 2d 55 (2002). There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected judge. 63 F. Supp. 2d, at 986. The Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial philosophy. 247 F. 3d, at 881-882. The Supreme Court of Minnesota adopted these interpretations as well when it ordered enforcement of the announce clause in accordance with the Eighth Circuit’s opinion. In re Code of Judicial Conduct, supra. It seems to us, however, that — like the text of the announce clause itself — these limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Tr. of Oral Arg. 33-34. Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. One would hardly expect the “disputed legal or political issues” raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, “[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction.” Buckley v. Illinois Judicial Inquiry Bd., 997 F. 2d 224, 229 (CA7 1993). Third, construing the clause to allow “general” discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a “ ‘strict constructionist.’” Tr. of Oral Arg. 29. But that, like most other philosophical generalities, has little meaningful content for the electorate unless it is exemplified by application to a particular issue of construction likely to come before a court — for example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Id., at 43. Without such application to real-life issues, all candidates can claim to be “strict constructionists” with equal (and unhelpful) plausibility. In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions — and in the latter context as well, if he expresses the view that he is not bound by stare decisis. Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate’s “character,” “education,” “work habits,” and “how [he] would handle administrative duties if elected.” Brief for Respondents 35-36. Indeed, the Judicial Board has printed a list of preapproved questions which judicial candidates are allowed to answer. These include how the candidate feels about cameras in the courtroom, how he would go about reducing the caseload, how the costs of judicial administration can be reduced, and how he proposes to ensure that minorities and women are treated more fairly by the court system. Minnesota State Bar Association Judicial Elections Task Force Report & Recommendations, App. C (June 19, 1997), reprinted at App. 97-103. Whether this list of preapproved subjects, and other topics not prohibited by the announce clause, adequately fulfill the First Amendment’s guarantee of freedom of speech is the question to which we now turn. III As the Court of Appeals recognized, the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is “at the core of our First Amendment freedoms” — speech about the qualifications of candidates for public office. 247 F. 3d, at 861, 863. The Court of Appeals concluded that the proper test to be applied to determine the constitutionality of such a restriction is what our cases have called strict scrutiny, id., at 864; the parties do not dispute that this is correct. Under the strict-scrutiny test, respondents have the burden to prove that the announce clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222 (1989). In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not “unnecessarily circumscrib[e] protected expression.” Brown v. Hartlage, 456 U. S. 45, 54 (1982). The Court of Appeals concluded that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state judiciary. 247 F. 3d, at 867. Respondents reassert these two interests before us, arguing that the first is compelling because it protects the due process rights of litigants, and that the second is compelling because it preserves public confidence in the judiciary. Respondents are rather vague, however, about what they mean by “impartiality.” Indeed, although the term is used throughout the Eighth Circuit’s opinion, the briefs, the Minnesota Code of Judicial Conduct, and the ABA Codes of Judicial Conduct, none of these sources bothers to define it. Clarity on this point is essential before we can decide whether impartiality is indeed a compelling state interest, and, if so, whether the announce clause is narrowly tailored to achieve it. A One meaning of “impartiality” in the judicial context — and of course its root meaning — is the lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. See Webster’s New International Dictionary 1247 (2d ed. 1950) (defining “impartial” as “[n]ot partial; esp., not favoring one more than another; treating all alike; unbiased; equitable; fair; just”). It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. Tumey v. Ohio, 273 U. S. 510, 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U. S. 57, 58-62 (1972) (same); Johnson v. Mississippi, 403 U. S. 212, 215-216 (1971) (per curiam) (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U. S. 899, 905 (1997) (would violate due process if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him); In re Murchison, 349 U. S. 133, 137-139 (1955) (judge violated due process by sitting in the criminal trial of defendant whom he had indicted). We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure, when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party. Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly. B It is perhaps possible to use the term “impartiality” in the judicial context (though this is certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause, but it is not a compelling state interest, as strict scrutiny requires. A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-JuSTiCE Rehnquist observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.” Laird v. Tatum, 409 U. S. 824, 885 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” Ibid. The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, §5 (“Judges of the supreme court, the court of appeals and the district court shall be learned in the law”). Arid since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the “appearance” of that type of impartiality can hardly be a compelling state interest either. C A third possible meaning of “impartiality” (again not a common one) might be described as openmindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in openmindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e. g., Laird, supra, at 831-833 (describing Justice Black’s participation in several cases construing and deciding the constitutionality of the Fair Labor Standards Act, even though as a Senator he had been one of its principal authors; and Chief Justice Hughes’s authorship of the opinion overruling Adkins v. Children's Hospital of D. C., 261 U. S. 525 (1923), a case he had criticized in a book written before his appointment to the Court). More common still is a judge’s confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication — in classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial Conduct, the Minnesota Code not only permits but encourages this. See Minn. Code of Judicial Conduct, Canon 4(B) (2002) (“A judge may write, lecture, teach, speak and participate in other extra-judicial activities concerning the law...”); Minn. Code of Judicial Conduct, Canon 4(B), Comment. (2002) (“To the extent that time permits, a judge is encouraged to do so...”). That is quite incompatible with the notion that the need for openmindedness (or for the appearance of openmindedness) lies behind the prohibition at issue here. The short of the matter is this: In Minnesota, a candidate for judicial office may not say “I think it is constitutional for the legislature to prohibit same-sex marriages.” He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of openmindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous. See City of Ladue v. Gilleo, 512 U. S. 43, 52-53 (1994) (noting that underinclusiveness “diminish[es] the credibility of the government’s rationale for restricting speech”); Florida Star v. B. J. F, 491 U. S. 524, 541-542 (1989) (Scalia, J., concurring in judgment) (“[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited” (internal quotation marks and citation omitted)). Justice Stevens asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. Post, at 801. That might be plausible, perhaps, with regard to campaign promises. A candidate who says “If elected, I will vote to uphold the legislature’s power to prohibit same-sex marriages” will positively be breaking his word if he does not do so (although one would be naive not to recognize that campaign promises are — by long democratic tradition — the least binding form of human commitment). But, as noted earlier, the Minnesota Supreme Court has adopted a separate prohibition on campaign “pledges or promises,” which is not challenged here. The proposition that judges feel significantly greater compulsion, or appear to feel significantly greater compulsion, to maintain consistency with nonpromissory statements made during a judicial campaign than with such statements made before or after the campaign is not self-evidently true. It seems to us quite likely, in fact, that in many cases the opposite is true. We doubt, for example, that a mere statement of position enunciated during the pendency of an election will be regarded by a judge as more binding — or as more likely to subject him to popular disfavor if reconsidered — than a carefully considered holding that the judge set forth in an earlier opinion denying some individual’s claim to justice. In any event, it suffices to say that respondents have not carried the burden imposed by our strict-scrutiny test to establish this proposition (that campaign statements are uniquely destructive of openmindedness) on which the validity of the announce clause rests. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 841 (1978) (rejecting speech restriction subject to strict scrutiny where the State “offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined”); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816-825 (2000) (same). Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. “[Djebate on the qualifications of candidates” is “at the core of our electoral process and of the First Amendment freedoms,” not at the edges. Eu, 489 U. S., at 222-223 (internal quotation marks omitted). “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Wood v. Georgia, 370 U. S. 375, 395 (1962). “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” Brown, 456 U. S., at 60 (internal quotation marks and citation omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election. Justice Ginsburg would do so — and much of her dissent confirms rather than refutes our conclusion that the purpose behind the announce clause is not openmindedness in the judiciary, but the undermining of judicial elections. She contends that the announce clause must be constitutional because due. process would be denied if an elected judge sat in a case involving an issue on which he had previously announced his view. Post, at 816, 819. She reaches this conclusion because, she says, such a judge would have a “direct, personal, substantial, and pecuniary interest” in ruling consistently with his previously announced view, in order to reduce the risk that he will be “voted off the bench and thereby lose [his] salary and emoluments,” post, at 816 (internal quotation marks and alterations omitted). But elected judges — regardless of whether they have announced any views beforehand — always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as Justice Ginsburg claims, it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then — quite simply — the practice of electing judges is itself a violation of due process. It is not difficult to understand how one with these views would approve the election-nullifying effect of the announce clause. They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted, see infra, at 785-786. Justice Ginsburg devotes the rest of her dissent to attacking arguments we do not make. For example, despite the number of pages she dedicates to disproving this proposition, post, at 805-809, we neither assert nor	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
UNITED STATES et al. CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF VIRGINIA et al. No. 94-1893. Argued December 6, 1995 Decided February 27, 1996 Deputy Solicitor General Wallace argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 94-1898 were Solicitor General Days, Acting Assistant Attorney General Phillips, Paul R. Q. Wolf son, Douglas N. Letter, Mark B. Stern, Bruce G. Forrest, William E. Kennard, and Christopher J. Wright. H. Bartow Farr III, Richard G. Taranto, Daniel L. Brenner, Neal M. Goldberg, and David L. Nicoll filed briefs for petitioner in No. 94-1900. Laurence H. Tribe argued the cause for respondents in both cases. With him on the brief were Jonathan S. Massey, Peter J. Rubin, Mark L. Evans, Kenneth W. Starr, Paul T. Cappuccio, James R. Young, John Thorne, and Michael E. Glover. Together with No. 94-1900, National Cable Television Assn., Inc. v. Bell Atlantic Corp. et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the California Cable Television Association by Bruce D. Sokler and Frank W. Lloyd III; and for the Consumer Federation of America et al. by Gigi B. Sohn and Andrew Jay Schwartzman. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne and Steven R. Shapiro; for BellSouth Corp. by Walter H. Alford, John F. Beasley, William Barfield, and Roger M. Flynt, Jr.; for East Ascension Telephone Co. by Richard A. Epstein; for GTE Corp. by M. Edward Whelan III, John F. Raposa, and Richard A. Cordray; for Mets Fans United/Virginia Consumers for Cable Choice et al. by Samuel A. Simon; for the United States Telephone Association et al. by Michael W. McConnell and Kenneth S. Getter; and for U S West, Inc., by Lloyd N. Cutler, Louis R. Cohen, William T. Lake, and Stuart S. Gunckel. Per Curiam. The judgment is vacated and the cases are remanded to the United States Court of Appeals for the Fourth Circuit for consideration of the question whether they are moot.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 37 ]	sc_adminaction
BLACK, ASSISTANT REGIONAL COMMISSIONER, ALCOHOL AND TOBACCO TAX DIVISION, INTERNAL REVENUE SERVICE, v. MAGNOLIA LIQUOR CO., INC. No. 14. Argued October 17, 1957. Decided November 12, 1957. Daniel M. Friedman argued the cause for petitioner. With him on the brief were Solicitor General Rankin and Assistant Attorney General Hansen. Moise S. Steeg, Jr. argued the cause and filed a brief for respondent. Mr. Justice Douglas delivered the opinion of the Court. Petitioner seeks to suspend respondent's wholesale liquor permit issued under the Federal Alcohol Administration Act (49 Stat. 977, 27 U. S. C. § 201) for having made “quota” sales of alcoholic beverages in violation of § 5 (a) and (b) of the Act. The agency ordered suspension of the-permit for 15 days for that violation. The Court of Appeals set the order aside, 231 F. 2d 941. The case is here on a petition for a writ of certiorari, which we granted (352 U. S. 877) because of a conflict between the decision below and Distilled Brands v. Dunigan, 222 F. 2d 867, from the Second Circuit. Section 5 makes it unlawful for a wholesaler to induce a retailer to purchase distilled spirits “to the exclusion in whole or in part of distilled spirits” offered by other persons “by requiring the retailer to take and dispose of a certain quota of any of such products,” where, inter alia, the effect is “substantially to restrain or prevent transactions in interstate or foreign commerce in any such products.” The facts are that during the period in question Johnny Walker Scotch and Seagram's V. 0. Whiskey were in short supply, while Seagram’s Ancient Bottle Gin and Seagram’s 7-Crown Whiskey were plentiful, Ancient Bottle being a poor seller. Respondent, in order to increase its sales of Ancient Bottle Gin and 7-Crown Whiskey, compelled retailers to buy them, which they did not desire, in order to obtain the other two whiskeys which they did desire. The agency found that respondent’s sales were “quota” sales within the meaning of the Act, that they affected adversely the sales of competing brands, and “excluded, in whole or in part, distilled spirits . . . offered for sale by other persons in interstate commerce” — all to the end of substantially restraining and preventing commerce. The Court of Appeals concluded that the transactions complained of, although tie-in sales, did not violate § 5 of the Act. Tying agreements by which the sale of one commodity is conditioned on the purchase of another have been repeatedly condemned under the antitrust laws, since they serve no purpose beyond the suppression of competition. Standard Oil Co. v. United States, 337 U. S. 293, 305-306; United States v. Paramount Pictures, 334 U. S. 131, 156— 159; International Salt Co. v. United States, 332 U. S. 392; Mercoid Corp. v. Minneapolis-Honey well Co., 320 U. S. 680. One aim of Congress by the present legislation was to prohibit practices that were “analogous to those prohibited by the antitrust laws,” (see H. R. Rep. No. 1542, 74th Cong., 1st Sess., p. 12). The tie-in sales involved here seem to us to run afoul of that policy, since the retailer is coerced into buying distilled spirits he would otherwise not have purchased at that time, and other sellers of the products are to that extent excluded from the market that would exist when the demand arose. A wholesaler who compels a retailer to buy an unwanted inventory as a condition to acquisition of needed articles exacts a “quota” from the retailer and excludes sales by competing wholesalers in the statutory sense. The court below relied on two countervailing considerations. It noted that § 5 (a) is headed “Exclusive outlet” and § 5 (b) “Tied house.” These titles were enough, it thought, to raise doubts concerning the meaning of the statutory clauses, since the retailer in question was not a “tied house” or “exclusive outlet,” but only the victim of these particular tied-in sales. The court was constrained to read the Act narrowly, as it conceived it to be penal in nature when it forfeited a permit to do business. But we deal here with remedial legislation whose language should be given hospitable scope. See Securities and Exchange Commission v. Joiner Corp., 320 U. S. 344, 353, 355. The will of Congress would be thwarted if we gave the language in question the strictest construction possible. The fair meaning of the Act is our guide; and it seems too clear for extended argument that the tied-in sale, though it falls short of creating an exclusive outlet and a permanently “tied house,” violates the Act. The other consideration relied upon by the Court of Appeals was a letter written by the agency to Congress in 1947 asking for an amendment to § 5 because it had doubt “whether violations of the statute could be established through the 'tie-in’ sales.” The administrative practice, we are advised, has quite consistently reflected the view that such sales are banned by the Act. See Annual Report, Commissioner of Internal Revenue 1946, pp. 45-46; id., 1947, p. 49. The fact that the agency sought a clarifying amendment is, therefore, of no significance. See Wong Yang Sung v. McGrath, 339 U. S. 33, 47; United States v. Turley, 352 U. S. 407, 415, n. 14. The judgment is reversed and the case is remanded to the Court of Appeals for proceedings in conformity with this opinion. Reversed.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
CLINGMAN, SECRETARY, OKLAHOMA STATE ELECTION BOARD, et al. v. BEAVER et al. No. 04-37. Argued January 19, 2005 Decided May 23, 2005 Justice Thomas delivered the opinion of the Court except as to Part II-A, concluding that Oklahoma’s semielosed primary system does not violate the right to freedom of association. Any burden it imposes is minor and justified by legitimate state -interests. Pp. 586-587, 591-598. (a) The First Amendment protects citizens’ right “to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones, 530 U. S. 567, 574. Regulations imposing severe burdens on associational rights must be narrowly tailored to serve a compelling state interest, but when they impose lesser burdens, “a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358. In Tash-jian v. Republican Party of Conn., 479 U. S. 208, 224, n. 13, the Court left open the question whether a State may prevent a political party from inviting registered voters of other parties to vote in its primary. Pp. 586-587. (b) Oklahoma’s system does not severely burden assoeiational rights. The Court disagrees with respondents’ argument that the burden Oklahoma imposes is no less severe than the burden at issue in Tashjian, and thus the Court must apply strict scrutiny as it did in Tashjian. Tashjian applied strict scrutiny without carefully examining the burden on assoeiational rights. Not every electoral law burdening assoeiational rights is subject to strict scrutiny, which is appropriate only if the burden is severe, e. g., Jones, supra, at 582. Requiring voters to register with a party before participating in its primary minimally burdens voters’ assoeiational rights. Moreover, Tashjian is distinguishable. Oklahoma’s semiclosed primary imposes an even less substantial burden than did the Connecticut closed primary at issue in Tashjian. Unlike that law, Oklahoma’s system does not require Independent voters to affiliate publicly with a party to vote in its primary, 479 U. S., at 216, n. 7. Although, like the earlier law, Oklahoma’s statute does not allow parties to “broaden opportunities for joining... by their own act,” but requires “intervening action by potential voters,” ibid., this burden is not severe, since many electoral regulations require that voters take some action to participate in the primary process. Such minor barriers between voter and party do not compel strict scrutiny. See Bullock v. Carter, 405 U. S. 134, 143. To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result. Pp. 591-593. (e) Oklahoma’s primary advances a number of regulatory interests this Court recognizes as important: It “preserves] [political] parties as viable and identifiable interest groups,” Nader v. Schaffer, 417 F. Supp. 837, 845 (Conn.), aff’d, 429 U. S. 989; enhances parties’ electioneering and party-building efforts, 417 F. Supp., at 848; and guards against party raiding and “sore loser” candidacies by spurned primary contenders, Storer v. Brown, 415 U. S. 724, 735. Pp. 593-597. (d) The -Court declines to consider respondents’ expansion of their challenge to include several of Oklahoma’s ballot access and voter registration laws. Those claims were neither raised nor decided below, see, e. g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157,168— 169, and respondents have pointed to no unusual circumstances warranting their consideration now, see Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646. Pp. 597-598. Justice Thomas, joined by The Chief Justice, Justice Scalia, and Justice Kennedy, concluded in Part II-A that a voter unwilling to disaffiliate from another party in order to vote in the LPO’s primary forms little “association” with the LPO — nor the LPO with him. See Tashjian, supra, at 235. But even if Oklahoma’s system burdens an associational right, the burden is less severe than others this Court has upheld as constitutional. The reasons underpinning Timmons, supra, show that Oklahoma’s system burdens the LPO only minimally. As in Timmons, Oklahoma’s law does not regulate the LPO’s internal processes, its authority to exclude unwanted members, or its capacity to communicate with the public. And just as in Timmons, in which a Minnesota law conditioned a party’s ability to nominate the candidate of its choice on the candidate’s willingness to disaffiliate from another party, Oklahoma conditions a party’s ability to welcome a voter into its primary on the voter’s willingness to dissociate from his current party of choice. If a party may be prevented from associating with its desired standard bearer because he refuses to disaffiliate from another party, it may also be prevented from associating with a voter who refuses to do the same. Oklahoma’s system imposes an even slighter burden on voters than on the LPO. Disaffiliation is not difficult: Other parties’ registered members who wish to vote in the LPO primary simply need to file a form changing their registration. Voters are not “locked in” to an unwanted party affiliation, see Kusper v. Pontikes, 414 U. S. 51, 60-61, because with only nominal effort they are free to vote in the LPO primary. Pp. 587-591. Justice O’Connor, joined by Justice Breyer except as to Part III, agreed with most of the Court’s reasoning, but wrote separately to emphasize two points. First, the Libertarian Party of Oklahoma (LPO) and voters registered with another party have constitutionally cognizable interests in associating with one another through the LPO’s primary, and these interests should not be minimized to dispose of this case. Second, while the Court is correct that only Oklahoma’s semiclosed primary law is properly under review, that standing alone it imposes only a modest, nondiscriminatory burden on respondents’ associational rights, and that this burden is justified by the State’s legitimate regulatory interests, there are some grounds for concern that other Oklahoma laws governing party recognition and changes in party affiliation may unreasonably restrict voters’ ability to participate in the LPO’s primary. A realistic assessment of regulatory burdens on associational rights would, in an appropriate case, require examination of the cumulative effects of the State’s overall primary scheme; and any finding of a more severe burden would trigger more probing review of the State’s justifications. Pp. 598-608. Thomas, J., delivered an opinion, which was for the Court except as to Part II-A. Rehnquist, C. J., and Scalia and Kennedy, JJ., joined that opinion in full, and O’Connor and Breyer, JJ., joined except as to Part II-A. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined except as to Part III, post, p. 598. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which Souter, J., joined as to Parts I, II, and III, post, p. 608. Wellon B. Poe, Jr., Assistant Attorney General of Oklahoma, argued the cause for petitioners. With him on the briefs was W. A. Drew Edmondson, Attorney General. James C. Linger argued the cause and filed a brief for respondents. A brief of amici curiae urging reversal was filed for the State of South Dakota et al. by Lawrence E. Long, Attorney General of South Dakota, Craig M. Eichstadt, Deputy Attorney General, and Gene C. Schaerr, and by the Attorneys General for their respective States as follows: J. Joseph Curran, Jr.,, of Maryland, Thomas F. Reilly of Massachusetts, Kelly A. Ayotte of New Hampshire, Patricia A Madrid of New Mexico, Roy Cooper of North Carolina, Mark Shurtleff of Utah, and Darrell V. Mc-Graw, Jr., of West Virginia. A brief of amicus curiae urging affirmance was filed for the Coalition for Free and Open Elections by Richard Shepard. Justice Thomas delivered the opinion of the Court, except as to Part II-A. Oklahoma has a semiclosed primary system, in which a political party may invite only its own party members and voters registered as Independents to vote in the party’s primary. The Court of Appeals held that this system violates the right to freedom of association of the Libertarian Party of Oklahoma (LPO) and several Oklahomans who are registered members of the Republican and Democratic Parties. We hold that it does not. I Oklahoma’s election laws provide that only registered members of a political party may vote in the party’s primary, see Okla. Stat. Ann., Tit. 26, § 1-104(A) (West 1997), unless the party opens its primary to registered Independents as well, see § 1-104(B)(1). In May 2000, the LPO notified the secretary of the Oklahoma State Election Board that it wanted to open its upcoming primary to all registered Oklahoma voters, without regard to their party affiliation. See § 1-104(B)(4) (requiring notice when a party opens its primary to Independents). Pursuant to § 1-104, the secretary agreed as to Independent voters, but not as to voters registered with other political parties. The LPO and several Republican and Democratic voters then sued for declaratory and injunctive relief in the United States District Court for the Western District of Oklahoma, alleging that Oklahoma’s semiclosed primary law unconstitutionally burdens their First Amendment right to freedom of political association. App. 20. After a hearing, the District Court declined to enjoin Oklahoma’s semiclosed primary law for the 2000 primaries. After a 2-day bench trial following the primary election, the District Court found that Oklahoma’s semiclosed primary system did not severely burden respondents’ associational rights. Further, it found that any burden imposed by the system was justified by Oklahoma’s asserted interest in “preserving the political parties as viable and identifiable interest groups, [and] insuring that the results of a primary election... accurately reflect the voting of the party members.” Memorandum Opinion, Case No. CIV-00-1071-F (WD Okla., Jan. 24,2003), App. to Pet. for Cert. 55-56 (hereinafter Memorandum Opinion) (internal quotation marks omitted). The District Court therefore upheld the semiclosed primary statute as constitutional. Id., at 72-73. On appeal, the Court of Appeals for the Tenth Circuit reversed the judgment of the District Court. The Court of Appeals concluded that the State’s semiclosed primary statute imposed a severe burden on respondents’ associational rights, and thus was constitutional only if the statute was narrowly tailored to serve a compelling state interest. 363 F. 3d 1048, 1057-1058 (2004). Finding none of Oklahoma’s interests compelling, the Court of Appeals enjoined Oklahoma from using its semiclosed primary law. Id., at 1060-1061. Because the Court of Appeals’ decision not only prohibits Oklahoma from using its primary system but also casts doubt on the semiclosed primary laws of 23 other States, we granted certiorari. 542 U. S. 965 (2004). t — I I — ( The Constitution grants States broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, §4, cl. 1, which power is matched by state control over the election process for state offices.” Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997) (quoting Tashjian). We have held that the First Amendment, among other things, protects the right of citizens “to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones, 530 U. S. 567, 574 (2000). Regulations that impose severe burdens on associational rights must be narrowly tailored to serve a compelling state interest. Timmons, 520 U. S., at 358. However, when regulations impose lesser burdens, “a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Ibid, (internal quotation marks omitted). In Tashjian, this Court struck down, as inconsistent with the First Amendment, a closed primary system that prevented a political party from inviting Independent voters to vote in the party’s primary. 479 U. S., at 225. This case presents a question that Tashjian left open: whether a State may prevent a political party from inviting registered voters of other parties to vote in its primary. Id., at 224, n. 13. As Tashjian acknowledged, opening a party’s primary “to all voters, including members of other parties,... raise[s] a different combination of considerations.” Ibid. We are persuaded that any burden Oklahoma’s semiclosed primary imposes is minor and justified by legitimate state interests. A At the outset, we note that Oklahoma’s semiclosed primary system is unlike other laws this Court has held to infringe associational rights. Oklahoma has not sought through its electoral system to discover the names of the LPO’s members, see NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 451 (1958); to interfere with the LPO by restricting activities central to its purpose, see NAACP v. Claiborne Hardware Co., 458 U. S. 886, 895 (1982); NAACP v. Button, 371 U. S. 415, 423-426 (1963); to disqualify the LPO from public benefits or privileges, see Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 595-596 (1967); or to compel the LPO’s association with unwanted members or voters, see Jones, supra, at 577. The LPO is free to canvass the electorate, enroll or exclude potential members, nominate the candidate of its choice, and engage in the same electoral activities as every other political party in Oklahoma. Oklahoma merely prohibits the LPO from leaving the selection of its candidates to people who are members of another political party. Nothing in § 1-104 prevents members of other parties from switching their registration to the LPO or to Independent status. The question is whether the Constitution requires that voters who are registered in other parties be allowed to vote in the LPO’s primary. In other words, the Republican and Democratic voters who have brought this action do not want to associate with the LPO, at least not in any formal sense. They wish to remain registered with the Republican, Democratic, or Reform parties, and yet to assist in selecting the Libertarian Party’s candidates for the general election. Their interest is in casting a vote for a Libertarian candidate in a particular primary election, rather than in banding together with fellow citizens committed to the LPO’s political goals and ideas. See Jones, supra, at 573-574, n. 5 (“As for the associational ‘interest’ in selecting the candidate of a group to which one does not belong, that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest”). And the LPO is happy to have their votes, if not their membership on the party rolls. However, a voter who is unwilling to disaffiliate from another party to vote in the LPO’s primary forms little “association” with the LPO — nor the LPO with him. See Tashjian, supra, at 235 (Scalia, J., dissenting). That same voter might wish to participate in numerous party primaries, or cast ballots for several candidates, in any given race. The issue is not “dual associations,” post, at 601 (O’Connor, J., concurring in part and concurring in judgment), but seemingly boundless ones. “If the concept of freedom of association is extended” to a voter’s every desire at the ballot box, “it ceases to be of any analytic use.” Tashjian, supra, at 235 (Scalia, J., dissenting); cf. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 130 (1981) (Powell, J., dissenting) (“[Not] every conflict between state law and party rules concerning participation in the nomination process creates a burden on associational rights”). But even if Oklahoma’s semiclosed primary system burdens an associational right, the burden is less severe than others this Court has upheld as constitutional. For instance, in Timmons, we considered a Minnesota election law prohibiting multiparty, or “fusion,” candidacies in which a candidate appears on the ballot as the nominee of more than one party. 520 U. S., at 353-354. Minnesota’s law prevented the New Party, a minor party under state law, from putting forward the same candidate as a major party. The New Party challenged the law as unconstitutionally burdening its associational rights. Id., at 354-355. This Court concluded that the burdens imposed by Minnesota’s law— “though not trivial — [were] not severe.” Id., at 363. The burdens were not severe because the New Party and its members remained free to govern themselves internally and to communicate with the public as they wished. Ibid. Minnesota had neither regulated the New Party’s internal decisionmaking process, nor compelled it to associate with voters of any political persuasion, see Jones, 530 U. S., at 577. The New Party and its members simply could not nominate as their candidate any of “those few individuals who both have already agreed to be another party’s candidate and also, if forced to choose, themselves prefer that other party.” Timmons, supra, at 363. The same reasons underpinning our decision in Timmons show that Oklahoma’s semiclosed primary system burdens the LPO only minimally. As in Timmons, Oklahoma’s law does not regulate the LPO’s internal processes, its authority to exclude unwanted members, or its capacity to communicate with the public. And just as in Timmons, in which Minnesota conditioned the party’s ability to nominate the candidate of its choice on the candidate’s willingness to disaffiliate from another political party, Oklahoma conditions the party’s ability to welcome a voter into its primary on the voter’s willingness to dissociate from his current party of choice. If anything, it is “[t]he moment of choosing the party’s nominee” that matters far more, Jones, 530 U. S., at 575, for that is “ ‘the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community,’ ” ibid, (quoting Tashjian, 479 U. S., at 216). If a party may be prevented from associating with the candidate of its choice — its desired “ ‘standard bearer,’ ” Timmons, supra, at 359; Jones, supra, at 575 — because that candidate refuses to disaffiliate from another political party, a party may also be prevented from associating with a voter who refuses to do the same. Oklahoma’s semiclosed primary system imposes an even slighter burden on voters than on the LPO. Disaffiliation is not difficult: In general, “anyone can ‘join’ a political party merely by asking for the appropriate ballot at the appropriate time or (at most) by registering within a state-defined reasonable period of time before an election.” Jones, supra, at 596 (Stevens, J., dissenting). In Oklahoma, registered members of the Republican, Democratic, and Reform Parties who wish to vote in the LPO primary simply need to file a form with the county election board secretary to change their registration. See Okla. Stat. Ann., Tit. 26, §4-119 (West Supp. 2005). Voters are not “locked in” to an unwanted party affiliation, see Kusper v. Pontikes, 414 U. S. 51, 60-61 (1973), because with only nominal effort they are free to vote in the LPO primary. For this reason, too, the registration requirement does not unduly hinder the LPO from associating with members of other parties. To attract members of other parties, the LPO need only persuade voters to make the minimal effort necessary to switch parties. B Respondents argue that this case is no different from Tashjian. According to respondents, the burden imposed by Oklahoma’s semiclosed primary system is no less severe than the burden at issue in Tashjian, and hence we must apply strict scrutiny as we did in Tashjian. We disagree. At issue in Tashjian was a Connecticut election statute that required voters to register with a political party before participating in its primary. 479 U. S., at 210-211. The State’s Republican Party, having adopted a rule that allowed Independent voters to participate in its primary, contended that Connecticut’s closed primary infringed its right to associate with Independent voters. Ibid. Applying strict scrutiny, this Court found that the interests Connecticut advanced to justify its ban were not compelling, and thus that the State could not constitutionally prevent the Republican Party from inviting into its primary willing Independent voters. Id., at 217-225. Respondents’ reliance on Tashjian is unavailing. As an initial matter, Tashjian applied strict scrutiny with little discussion of the magnitude of the burdens imposed by Connecticut’s closed primary on parties’ and voters’ associational rights. Post, at 605 (O’Connor, J., concurring in part and concurring in judgment). But not every electoral law that burdens associational rights is subject to strict scrutiny. See, e. g., Nader v. Schaffer, 417 F. Supp. 837, 849 (Conn.) (“There must be more than a minimal infringement on the rights to vote and of association... before strict judicial review is warranted”), aff’d, 429 U. S. 989 (1976). Instead, as our cases since Tashjian have clarified, strict scrutiny is appropriate only if the burden is severe. Jones, supra, at 582; Timmons, 520 U. S., at 358. In Tashjian itself, Independent voters could join the Connecticut Republican Party as late as the day before the primary. 479 U. S., at 219. As explained above, supra, at 590-591, requiring voters to register with a party prior to participating in the party’s primary minimally burdens voters’ associational rights. Nevertheless, Tashjian is distinguishable. Oklahoma’s semiclosed primary imposes an even less substantial burden than did the Connecticut closed primary at issue in Tashjian. In Tashjian, this Court identified two ways in which Connecticut’s closed primary limited citizens’ freedom of political association. The first and most important was that it required Independent voters to affiliate publicly with a party to vote in its primary. 479 U. S., at 216, n. 7. That is not true in this case. At issue here are voters who have already affiliated publicly with one of Oklahoma’s political parties. These voters need not register as Libertarians to vote in the LPO’s primary; they need only declare themselves Independents, which would leave them free to participate in any party primary that is open to registered Independents. See Okla. Stat. Ann., Tit. 26, § 1-104(B)(1) (West 1997). The second and less important burden imposed by Connecticut’s closed primary system was that political parties could not “broaden opportunities for joining... by their own act, without any intervening action by potential voters.” Tashjian, 479 U. S., at 216, n. 7. Voters also had to act by registering themselves in a particular party. Ibid. That is equally true of Oklahoma’s semiclosed primary system: Voters must register as Libertarians or Independents to participate in the LPO’s primary. However, Tashjian did not characterize this burden alone as severe, and with good reason. Many electoral regulations, including voter registration generally, require that voters take some action to participate in the primary process. See, e. g., Rosario v. Rockefeller, 410 U. S. 752, 760-762 (1973) (upholding requirement that voters change party registration 11 months in advance of the primary election). Election laws invariably “affec[t] — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). These minor barriers between voter and party do not compel strict scrutiny. See Bullock v. Carter, 405 U. S. 134, 143 (1972). To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result, for it is beyond question “that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Timmons, supra, at 358; Storer v. Brown, 415 U. S. 724, 730 (1974). Oklahoma’s semiclosed primary system does not severely burden the associational rights of the State’s citizenry. C When a state electoral provision places no heavy burden on associational rights, “a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons, supra, at 358 (internal quotation marks omitted); Anderson, supra, at 788. Here, Oklahoma’s semiclosed primary advances a number of regulatory interests that this Court recognizes as important: It “preserves] [political] parties as viable and identifiable interest groups,” Nader, 417 F. Supp., at 845; enhances parties’ electioneering and party-building efforts, id., at 848; and guards against party raiding and “sore loser” candidacies by spurned primary contenders, Storer, supra, at 735. First, as Oklahoma asserts, its semiclosed primary “preserves] the political parties as viable and identifiable interest groups, insuring that the results of a primary election, in a broad sense, accurately reflec[t] the voting of the party members.” Amended and Supplemental Trial Brief of Defendants 10, Record Doc. 63 (quoting without attribution Nader, supra, at 845). The LPO wishes to open its primary to registered Republicans and Democrats, who may well vote in numbers that dwarf the roughly 300 registered LPO voters in Oklahoma. See Memorandum Opinion 31-32 (at least 95% of voters in LPO’s 1996 primary were independents, not Libertarians). If the LPO is permitted to open its primary to all registered voters regardless of party affiliation, the candidate who emerges from the LPO primary may be “unconcerned with, if not... hostile to,” the political preferences of the majority of the LPO’s members. Nader, supra, at 846. It does not matter that the LPO is willing to risk the surrender of its identity in exchange for electoral success. Oklahoma’s interest is independent and concerns the integrity of its primary system. The State wants to “avoid primary election outcomes which would tend to confuse or mislead the general voting population to the extent [it] relies on party labels as representative of certain ideologies.” Brief for Petitioners 12 (quoting without attribution Nader, supra, at 845); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 228 (1989). Moreover, this Court has found that “ ‘[i]n facilitating the effective operation of [a] democratic government, a state might reasonably classify voters or candidates according to political affiliations.’” Nader, supra, at 845-846 (quoting Ray v. Blair, 343 U. S. 214, 226, n. 14 (1952)). But for that classification to mean much, Oklahoma must be allowed to limit voters’ ability to roam among parties’ primaries. The purpose of party registration is to provide “a minimal demonstration by the voter that he has some ‘commitment’ to the party in whose primary he wishes to participate.” Nader, supra, at 847. That commitment is lessened if party members may retain their registration in one party while voting in another party’s primary. Opening the LPO’s primary to all voters not only would render the LPO’s imprimatur an unreliable index of its candidate’s actual political philosophy, but it also “would make registered party affiliations signifi-. cantly less meaningful in the Oklahoma primary election system.” Memorandum Opinion 59. Oklahoma reasonably has concluded that opening the LPO’s primary to all voters regardless of party affiliation would undermine the crucial role of political parties in the primary process. Cf. Jones, 530 U. S., at 574. Second, Oklahoma’s semiclosed primary system, by retaining the importance of party affiliation, aids in parties’ electioneering and party-building efforts. “It is common experience that direct solicitation of party members — by mail, telephone, or face-to-face contact, and by the candidates themselves or by their active supporters — is part of any primary election campaign.” Nader, supra, at 848. Yet parties’ voter turnout efforts depend in large part on accurate voter registration rolls. See, e. g., Council of Alternative Political Parties v. State Div. of Elections, 344 N. J. Super. 225, 231-232, 781 A. 2d 1041, 1045 (2001) (“It is undisputed that the voter registration lists, with voter affiliation information,... provide essential information to the [party state committees] for other campaign and party-building activities, including canvassing and fundraising”). When voters are no longer required to disaffiliate before participating in other parties? primaries, voter registration rolls cease to be an accurate reflection of voters’ political preferences. And without registration rolls that accurately reflect likely or	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
FOTI v. IMMIGRATION AND NATURALIZATION SERVICE. No. 28. Argued October 17, 21, 1963. —Decided December 16, 1963. James J. Catty argued the cause and filed a brief for petitioner. Philip R. Monahan argued the cause for respondent. With him on the brief were Solicitor General Cox and Assistant Attorney General Miller. Jack Wasserman and David Carliner filed a brief for the Association of Immigration and Nationality Lawyers, as amicus curiae, urging affirmance. Mr. Chief Justice Warren delivered the opinion of the Court. Involved in this case is the single question of whether the Federal Courts of Appeals have the initial, exclusive jurisdiction, under § 106 (a) of the Immigration and Nationality Act, to review discretionary determinations of the Attorney General, relating to the suspension of deportation, under § 244 (a)(5) of the Act. Petitioner, a 47-year-old alien and a native and citizen of Italy, last entered the United States in late 1950, through the port of Norfolk, Virginia, on a seaman’s visa which authorized him to remain in this country for a period not to exceed 29 days. He remained here illegally for more than 10 years, leaving his wife and three minor children in Italy. In 1961, deportation proceedings were instituted against petitioner, directing him to appear before a special inquiry officer of the Immigration and Naturalization Service and show cause why he should not be deported under § 241 (a) (2) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1251 (a)(2), as an alien who had unlawfully overstayed the period for which he had been admitted. At a hearing conducted before a special inquiry officer under § 242 (b) of the Act, petitioner conceded his deportability, and applied, in the alternative, for two forms of discretionary relief which the Attorney General is authorized by the Act to grant to deportable persons who meet defined eligibility requirements. He sought, pursuant to § 244 (a) (5) of the Act, a suspension of deportation on the ground that it would be difficult for him to earn a living for his family in Italy if he were deported and deportation would result in his having to liquidate the bakery business which he owned and operated in Brooklyn, New York. Alternatively, if suspension of deportation were refused, petitioner requested, pursuant to § 244 (e) of the Act, the privilege of voluntary departure at his own expense in lieu of deportation. The special inquiry officer, although finding that petitioner met the good moral character and 10 years’ continuous presence in the United States requirements of §244 (a)(5), denied his application for suspension of deportation, on the ground that petitioner was ineligible for that form of discretionary relief since his deportation would not result “in exceptional and extremely unusual hardship . . . .” Petitioner’s alternative request for the privilege of voluntary departure was granted, however. Petitioner appealed to the Board of Immigration Appeals from that part of the order of the special inquiry officer which denied his request for suspension of deportation. The Board, on November 28, 1961, dismissed the appeal. Petitioner was directed to effect his departure by December 18,1961. Prior to that date, petitioner commenced an action in the Federal District Court for the Southern District of New York, seeking declaratory and injunctive relief from the administrative refusal to grant his request for suspension of deportation. The District Court dismissed the action on the ground that, under the recently enacted § 106 (a) of the Immigration and Nationality Act, 8 U. S. C. § 1105a (a), the sole and exclusive procedure for obtaining judicial review of such a determination was by a petition for review filed in an appropriate Federal Court of Appeals. Accordingly, petitioner then sought review in the Court of Appeals for the Second Circuit. On September 21, 1962, the Court of Appeals, sitting en banc and by a five-to-four vote, dismissed the petition for lack of jurisdiction, holding that the term “final orders of deportation” in § 106 (a) does not include a denial of discretionary relief under § 244 (a)(5). 308 F. 2d 779. Because of a conflict among the Courts of Appeals regarding the interpretation of this jurisdictional language in § 106 (a), we granted certiorari, limited to the question whether Courts of Appeals have jurisdiction to review final administrative orders with respect to discretionary relief sought during deportation proceedings. 371 U. S. 947. The issue involved here is solely one relating to procedures incident to deportation proceedings. In the present posture of the case, we need not be concerned with the ultimate merits as to petitioner’s deportability, since he concedes that he is deportable and the question of the propriety of the administrative refusal of suspension of deportation has not as yet been reviewed in any lower federal court. The only question presented for decision involves the scope of judicial review by the Courts of Appeals of administrative determinations made during the course of deportation proceedings. Specifically, we must decide a rather narrow question of statutory construction — whether a refusal by the Attorney General to grant a suspension of deportation is one of those “final orders of deportation” of which direct review by Courts of Appeals is authorized under § 106 (a) of the Act. Both parties have contended that it is. While the question is not free of difficulty, as evidenced by the division in the court below and the conflict among the various Courts of Appeals on the matter, we have concluded that the court below erred in holding that it was not. The statutory provision in question, § 106 (a) of the Immigration and Nationality Act, provides that the procedure for judicial review by the Courts of Appeals of certain orders of the Federal Communications Commission, Secretary of Agriculture, Federal Maritime Board and Atomic Energy Commission shall also “apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 242 (b) of this Act or comparable provisions of any prior Act . . . .” Section 242 provides a detailed administrative procedure for determining whether an alien should be deported. Sections 243 and 244 relate to certain situations in which the Attorney General may suspend deportation in his discretion. In its decision below, the Court of Appeals for the Second Circuit held that § 106 (a) applies only to orders required by statute to be made in a § 242 (b) hearing, i. e., findings of de-portability. Both petitioner and the Government have urged that the decision below should be reversed, and that the statutory language should be so construed as to include both an adjudication of deportability and an order denying suspension of deportation. Based on the historical background of the Immigration and Nationality Act, the manifest purpose of Congress in enacting § 106 (a), the context of the statutory language when viewed against the prevailing administrative practices and procedures, and pertinent legislative history of § 106 (a), we are led to the conclusion that the interpretation argued for by petitioner and the Government is the correct one. Prior to 1940, the Attorney General had no discretion with respect to the deportation of an alien who came within the defined category of deportable persons. The expulsion of such a person was mandatory; his only avenue of relief in a hardship case was by a private bill in Congress. Therefore, any differentiation that might have been made prior to 1940 between a determination that an alien was deportable and the order directing his deportation would have been merely formalistic and essentially meaningless. In fact, the determination of deportability necessarily resulted in, and was invariably accompanied by, a deportation order. Since 1940, however, when the Attorney General was given the power to grant discretionary relief under various circumstances in deportation cases, administrative regulations having the force and effect of law have provided for the practice of determining deportability and ruling on an application for suspension of deportation in a single proceeding conducted by the Immigration and Naturalization Service. Thus, the administrative discretion to grant a suspension of deportation has historically been consistently exercised as an integral part of the proceedings which have led to the issuance of a final deportation order, and discretionary relief, if sought, must be requested prior to or during the deportation hearing. The hearings on deportability and on an application for discretionary relief have, as a matter of traditional uniform practice, been held in one proceeding before the same special inquiry officer, resulting in one final order of deportation. Significantly, when suspension is granted, no deportation order is rendered at all, even if the alien is in fact found to be deportable. It must be concluded that Congress knew of this familiar administrative practice and had it in mind when it enacted § 106 (a). These usages and procedures, which were actually followed when the provision was enacted, must reasonably be regarded as composing the context of the legislation. A colloquy between Congressmen Walter, Lindsay and Moore, all knowledgeable in deportation matters, is definitely corroborative of this view. This colloquy occurred during the House debates on the predecessor to the bill which was enacted in 1961 and contained § 106 (a). Representative Lindsay suggested that the legislative history should make absolutely clear “that if there is any remedy on the administrative level left of any nature, that the deportation order will not be considered final.” Representative Walter agreed, and stated that “the final order means the final administrative order.” With Representative Moore concurring, all three congressmen agreed that there would be no “final order of deportation” until after determination of the question of suspension. Significantly, Representative Walter, in discussing the running of the time period provided for the filing of petitions for review by the Courts of Appeals under the proposed legislation, stated that “the 6 months’ period on the question of finality of an order applies to the final administrative adjudication of the applications for suspension of deportation just as it would apply to any other issue brought up in deportation proceedings.” With the dissenters below, we feel that the court’s speculation that few congressmen were present at the time of this exchange was unwarranted and probably immaterial. It can hardly be contended that the meaning of the phrase “final orders of deportation” is so clear and unambiguous as to be susceptible of only a narrow interpretation confined solely to determinations of deportability.' If anything, the literal language would appear to include a denial of discretionary relief, made during the same proceedings in which deportability is determined, which effectively terminates the proceeding. In arriving at the intended construction of this language, we must therefore inevitably turn to the purpose of Congress in enacting this legislation. The fundamental purpose behind § 106 (a) was to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices which had come to the attention of Congress, whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts. A House Judiciary Committee report succinctly stated the problem to which Congress addressed itself in enacting § 106 (a). It indicated that the Committee “has been disturbed in recent years to observe the growing frequency of judicial actions being instituted by undesirable aliens whose cases have no legal basis or merit, but which are brought solely for the purpose of preventing or delaying indefinitely their deportation from this country.” Pointing to the essence of the problem, the report continued: “Other aliens, mostly subversives, gangsters, immoral [persons], or narcotic peddlers, manage to protract their stay here indefinitely only because their ill-gotten gains permit them to procure the services of astute attorneys who know how to skillfully exploit the judicial process. Without any reflection upon the courts, it is undoubtedly now the fact that such tactics can prevent enforcement of the deportation provisions of the Immigration and Nationality Act by repetitive appeals to the busy and overworked courts with frivolous claims of impropriety in the deportation proceedings.” The key feature of the congressional plan directed at this problem was the elimination of the previous initial step in obtaining judicial review — a suit in a District Court— and the resulting restriction of review to Courts of Appeals, subject only to the certiorari jurisdiction of this Court. As stated in the same Committee report, the plain objective of § 106 (a) was “to create a single, separate, statutory form of judicial review of administrative orders for the deportation ... of aliens . . . .” Further evidence of a specific congressional intent to give Courts of Appeals exclusive jurisdiction to review denials of discretionary relief in deportation proceedings is contained in the legislative history. Case histories of abuse of the existing judicial review process, as summarized in the various Committee reports, include references to litigation arising out of discretionary determinations. And a reference chart reproduced in the Committee reports shows the denial of discretionary relief as being antecedent to and a constituent part of the “final order of deportation.” Although deportability and whether to grant a suspension are determined in the same hearing, the decision below means that an alien may appeal only the deportability finding to a Court of Appeals and must initially seek review of a denial of suspension in a District Court. A short analysis of the reasoning of the court below demonstrates that its conclusion is inconsistent with this manifest purpose of Congress. Although the Court of Appeals agrees that the basic purpose of § 106 (a) was to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts, it fails to apply that interpretation to the question presented in this case. Its finding that the bifurcated procedure resulting from an alien’s seeking review of a denial of discretionary relief in a District Court and review of an adjudication of deportability, as is admittedly required by § 106 (a), in a Court of Appeals would expedite the deportation is without foundation. It is premised on its assumption that, in actions to review denial of discretionary relief, District Courts rarely grant restraining orders. Reliance upon such an assumption, we feel, is unjustified. At all events, under the procedure urged by the petitioner and the Government, an alien can obtain an automatic stay of deportation under § 106 (a) by seeking a review of the finding of de-portability and can simultaneously seek review of the denial of discretionary relief in a Court of Appeals. Review of the denial of discretionary relief is ancillary to the deportability issue, and both determinations should therefore be made by the same court at the same time. We realize that deportability is conceded in a large number of cases. But this fact hardly detracts from our view as to a proper interpretation of § 106 (a). In substance, we feel that the Court of Appeals was wrong in limiting the phrase “final orders of deportation” in § 106 (a) to adjudications of deportability. The finding of the court below that the phrase was a “term of art” with a well-understood meaning, merely because it was used several times in §§ 242 and 244 when plainly referring only to rulings on deportability, cannot be substantiated. Section 106 (a) was of course not enacted contemporaneously with §§ 242 and 244, and it is solely concerned with the rather different problem of judicial review. And the language of § 242 (b) indicates that Congress plainly distinguished determinations of de-portability from orders of deportation. We regard this as of especial relevance since § 106 (a), in describing the “final orders of deportation” intended to be encompassed thereunder, specifically refers to administrative proceedings conducted under § 242 (b). Paragraph (4) of the subsidiary exceptions to § 106 (a) provides for review solely upon the administrative record and indicates that the findings of fact below are conclusive “if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” However, this does not necessarily mean that Congress intended review in the Courts of Appeals to be restricted to adjudications of deportability. Admittedly, the standard of review applicable to denials of discretionary relief cannot be the same as that for adjudications of deportability, since judicial review of the former is concededly limited to determinations of whether there has been any abuse of administrative discretion. While paragraph (4) clearly applies only to review of adjudications of deportability, and possibly to review of administrative findings of eligibility for discretionary relief, this is not decisive with respect to the intent of Congress. The inclusion in one of the “exceptions” to the principal provision of § 106 (a) of a proviso which primarily could apply only to determinations of deportability does not necessarily indicate that the principal provision of the section was also intended to be thus limited. Since the adjudication of deportability is certainly the principal ingredient, and an indispensable one, of the ultimate result of the proceeding — a final order of deportation — it would not be unusual for Congress to include in an overall enactment relating to judicial review of all final orders of deportation a specific provision pertinent to the primary constituent of such an order. Also, it seems rather clear that all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals, such as orders denying voluntary departure pursuant to § 244 (e) and orders denying the withholding of deportation under § 243 (h), are likewise included within the ambit of the exclusive jurisdiction of the Courts of Appeals under § 106 (a). We see nothing anomalous about the fact that a change in the administrative regulations may effectively broaden or narrow the scope of review available in the Courts of Appeals. Furthermore, we do not regard it “in the last degree unlikely” that Congress intended a court of three judges to initially review discretionary determinations denying suspension of deportation. Much of the litigation in deportation cases with respect to the setting aside of an administrative determination on the ground of arbitrariness involves disputed eligibility questions and matters of statutory construction. Additionally, the concern of the court below does not comport with the declared purpose of § 106 (a) to eliminate the District Court stage of the judicial review process in an effort to prevent dilatory tactics. And the suggestion of the court below that it is “incredible” that Congress meant to burden the Courts of Appeals with review of all orders denying discretionary relief in deportation cases is unconvincing. Congress presumably realized that, in practical effect, those engaged in dilatory tactics would hardly hesitate to appeal to a Court of Appeals from an adverse District Court determination where discretionary relief had been denied in the administrative proceeding. We need not pass at this time on whether § 106 (a) extends the exclusive jurisdiction of the Courts of Appeals to include review of orders refusing to reopen deportation proceedings. The question is admittedly a somewhat different one, since such an administrative determination is not made during the same proceeding where deportability is determined and discretionary relief is denied. And, of course, our decision in this case in no way impairs the preservation and availability of habeas corpus relief. We believe that the controlling intention of Congress, in enacting § 106 (a), was to prevent delays in the deportation process by vesting in the Courts of Appeals sole jurisdiction to review “all final orders of deportation.” It seems apparent that, because of the consistent practice under the administrative regulations since 1940 of adjudicating deportability and passing on applications for discretionary relief in the same proceeding, the final administrative action that Congress was thinking of in using the phrase “final orders of deportation” included denials of suspension of deportation. To so construe § 106 (a) does not constitute an expansion of “the words used by Congress beyond their well-understood meaning.” Bifurcation of judicial review of deportation proceedings is not-only inconvenient; it is clearly undesirable and not the necessary result from a fair interpretation of the pertinent statutory language. Therefore, this matter can and should be passed upon by the Courts of Appeals, resulting in a judicial review procedure that would be both fair to the petitioner and expeditious for the Government. The decision below is therefore reversed and the case is remanded to the Court of Appeals for further consideration consistent with this opinion. It is so ordered. The granting of voluntary departure relief does not result in the alien’s not being subject to an outstanding final order of deportation. In this ease, the order granting voluntary departure was combined with a contingent deportation order, which directed that petitioner be deported if he failed to depart within the prescribed time and was to become effective automatically if petitioner did not depart the country by the date fixed by the District Director. Immigration and Nationality Act, § 106, as added by § 5 (a) of Public Law 87-301, approved September 26, 1961, 75 Stat. 651, 8 U. S. C. (Supp. IV, 1962) § 1105a. Compare Fong v. Immigration and Naturalization Service, 308 F. 2d 191 (C. A. 9th Cir. 1962), Blagaic v. Flagg, 304 F. 2d 623 (C. A. 7th Cir. 1962), and Roumeliotis v. Immigration and Naturalization Service, 304 F. 2d 453 (C. A. 7th Cir. 1962), cert. denied, 371 U. S. 921, with Holz v. Immigration and Naturalization Service, 309 F. 2d 452 (C. A. 9th Cir. 1962), Zupicich v. Esperdy, 207 F. Supp. 574 (D. C. S. D. N. Y. 1962), and the decision below. On October 24, 1962, subsequent to the decision below and while the case was pending before this Court on petition for certiorari, Congress enacted Public-Law 87-885, § 4, 76 Stat. 1247, effective the same date. This enactment provides, in relevant part, for the amendment of § 244 of the Act, the source of the Attorney General’s power to suspend the deportation of eligible classes of aliens, by the addition of a new subsection, which states: “(f) No provision of this section shall be applicable to an alien who (1) entered the United States as a crewman ....”. Although petitioner concededly entered the United States as a crewman, and the Government has indicated that, when the merits of this case are reached, it will argue that petitioner is now absolutely ineligible for the relief sought, because of the 1962 amendment to § 244, we agree with the parties that the enactment of this amendment did not necessarily have the effect of rendering moot the jurisdictional issue involved in this litigation. The applicability of this provision to one in petitioner’s situation is an arguable matter, and, since it is not undisputed but remains debatable whether the relief sought by petitioner could still be granted, we have determined it not improper to consider and decide the threshold question of the jurisdiction of the Court of Appeals. Hobbs Act, 64 Stat. 1129 (1950), as amended, 5 U. S. C. § 1031-1042, vesting the Courts of Appeals with exclusive jurisdiction to review final orders of certain designated federal agencies. On the history of the recent congressional enactments relating to deportation, see Comment, 71 Yale L. J. 760 (1962). Regarding the extent of the Attorney General's discretion in suspension of deportation cases, see, e. g., Jay v. Boyd, 351 U. S. 345, 354, 357-358 (1956). Representative Walter was the chairman of a subcommittee of the House Judiciary Committee responsible for immigration and nationality matters, author and chief sponsor of the measure under consideration, and a respected congressional leader in the whole area of immigration law. Representative Lindsay was thoroughly familiar with the problems in this area and the role of discretionary determinations denying suspension in the deportation process, as a result of having represented the Government, three years earlier, in Jay v. Boyd, 351 U. S. 345 (1956). Representative Moore was a co-sponsor of the bill under discussion and a member of the House Judiciary Committee out of which the bill containing § 106 (a) was reported. 105 Cong. Rec. 12728. H. R. Rep. No. 1086, 87th Cong., 1st Sess. 22-23 (1961). In further elucidating the purpose of the proposed legislation on the floor of the House, Representative Walter, in reference to one of the predecessor bills in 1968, stated: “Most important, by eliminating review in the district courts, the bill would obviate one of the primary causes of delay in the final determination of all questions which may arise in a deportation proceeding.” 104 Cong. Rec. 17173. According to the General Counsel of the Immigration and Naturalization Service, the Service’s policy and practice is to stay deportation, sua sponte, when a petition to obtain judicial review of determinations made during the administrative proceedings is not “patently frivolous.” See Comment, 111 U. of Pa. L. Rev. 1226, 1230 (1963). Consequently, temporary restraining orders issued by District Courts would usually be unnecessary to prevent deportation, and whether District Courts grant restraining orders rarely or frequently is rather irrelevant. And the assumption of the court below that, since the Attorney General can moot the proceedings in the District Courts (unless a restraining order is issued) by deporting the alien pendente lite, ultimate deportation would be expedited by permitting bifurcated judicial review seems unwarranted. Also, an assumption that the practice of District Courts is merely to issue restraining orders pending final disposition in a Court of Appeals of all of the questions presented for judicial review in a deportation case appears unjustified. See, e. g., Zupicich v. Esperdy, 207 F. Supp. 574 (D. C. S. D. N. Y. 1962). Deportability is conceded in about 80% of the cases. See Gordon and Rosenfield, Immigration Law and Procedure, § 5.7a, at 541 (1962). Even so, the bifurcation problem remains in that type of case which prompted the enactment of § 106 (a), where judicial review of both an adjudication of deportability and a denial of discretionary relief is sought. Because of the effect of our holding here, it is of course unnecessary to consider the Government’s contention that, where deport-ability is actually adjudicated, a Court of Appeals has “pendent jurisdiction” to review a denial of discretionary relief in the same proceeding. In the instant case the special inquiry officer not only found that petitioner failed to meet the eligibility requirements for suspension of deportation, since no hardship would result from his deportation, but further indicated that, even had the hardship requirement been met, relief would have been denied as a discretionary matter. Since a special inquiry officer cannot exercise his discretion to suspend deportation until he finds the alien statutorily eligible for suspension, a finding of eligibility and an exercise of (or refusal to exercise) discretion may properly be considered as distinct and separate matters. And since the finding of eligibility involves questions of fact and law, paragraph (4) of § 106 (a) might be read to require that this finding be based on substantial evidence in the record. See Comment, 111 U. of Pa. L. Rev. 1226, 1229 (1963). However, we'need not pass on this question here. And, of course, denial of suspension of deportation as a discretionary matter is reviewable only for arbitrariness and abuse of discretion, and thus could hardly be within the procedural and evidentiary requisites of paragraph (4). When § 106 (a) was enacted, the withholding of deportation under § 243 (h) was a matter determined by an official other than the special inquiry officer conducting the deportation hearing, on a later occasion, under regulations promulgated by the Attorney General, and the designation of the country of deportation was not made until after the issuance of the warrant of deportation. Under revised and currently effective regulations, both the designation of the country of deportation and the decision on any § 243 (h) request for relief which the alien might wish to make are effected in the deportation proceedings and reflected in the final order of deportation. While presumably denials of § 243 (h) relief were not covered by § 106 (a) at the time of its enactment, it does not seem incongruous to assume that such orders, because of the change in administrative regulations making such decisions an integral part of the deportation proceedings conducted by a special inquiry officer, are now within the reach of §106 (a)’s judicial review provisions. Such a result simply means that, while the jurisdiction of the Courts of Appeals is limited now, as when § 106 (a) was enacted, to the review of “all final orders of deportation,” a change in the administrative regulations relating to the processing and determination of applications for § 243 (h) relief had the incidental effect of expanding the decisional content of such orders. Clearly, changes in administrative procedures may affect the scope and content of various types of agency orders and thus the subject matter embraced in a judicial proceeding to review such orders. Compare, however, 308 F. 2d, at 785, n. 6, where the court below referred to the “inarticulate premise that all deportation suits are appealed . . .” from District Courts to Courts of Appeals. The court below manifested its concern that, if it were to find that it had jurisdiction in this case, the door would then be opened to the obtaining of review of a refusal to reopen a deportation proceeding in the Courts of Appeals. 308 F. 2d, at 785. And the Government has argued in its brief that, although the question is a close one, an order refusing to reopen a deportation proceeding should be regarded as within the provisions of § 106 (a) with respect to judicial review in the Courts of Appeals, though occurring subsequent to the issuance of a final deportation order. Brief for respondent, pp. 51-54. Compare Giova v. Rosenberg, 308 F. 2d 347 (C. A. 9th Cir. 1962), petition for cert. pending, No. 15, Misc., October Term, 1963. Cf. Dentico v. Immigration and Naturalization Service, 303 F. 2d 137 (C. A. 2d Cir. 1962), holding that Courts of Appeals have exclusive jurisdiction to review denials of motions to reopen deportation proceedings, where review of a final order of deportation is sought at the same time. Compare the provisions of § 106 (c) purporting to restrict the availability of habeas corpus relief in deportation cases. But see the provisions of § 106 (a) (9) with respect to the availability of habeas corpus relief to aliens held in custody pursuant to a deportation order.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 6 ]	sc_adminaction
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. FEDERAL LABOR RELATIONS AUTHORITY et al. No. 84-1728. Argued January 22, 1986 Decided April 29, 1986 Deputy Solicitor General Kuhl argued the cause for petitioner. On the briefs were Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, and William Ranter. Ruth E. Peters argued the cause for respondents. With her on the brief for respondent Federal Labor Relations Authority were Steven H. Svartz, William E. Persina, and Robert J. Englehart. William J. Stone and Mark D. Roth filed a brief for respondent Union. Ronald A. Zumbrun and John H. Findley filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the National Federation of Federal Employees by Patrick J. Riley; and for the National Treasury Employees Union by Lois G. Williams and Elaine D. Kaplan. Per Curiam. We granted certiorari, 472 U. S. 1026 (1985), to consider the question whether a union proposal that would require a federal agency to comply with OMB Circular A-76 (1983) Performance of Commercial Activities, which prescribes guidelines for contracting out by federal agencies, is negotiable under Title VII of the Civil Service Reform Act of 1978, 5 U. S. C. §7101 etseq. In the course of contract negotiations with petitioner, the Equal Employment Opportunity Commission (EEOC), respondent American Federation of Government Employees (AFGE) submitted the following proposal: “The EMPLOYER agrees to comply with OMB Circular A-76 and other applicable laws and regulations concerning contracting out.” The EEOC took the position that this proposal was nonnegotiable under the Civil Service Reform Act (Act) and declined to bargain over it. AFGE then petitioned for review by respondent Federal Labor Relations Authority (FLRA), which is empowered by the Act to “resolv[e] issues relating to the duty to bargain” in the federal sector. 5 U. S. C. § 7105(a)(2)(E). Before the FLRA, the EEOC’s principal contention was that because the proposal concerned contracting out it was inconsistent with the Act’s management rights clause, which, in pertinent part, provides that “nothing in [Title VII] shall affect the authority of any management official of any agency— ... in accordance with applicable laws— ... to make determinations with respect to contracting out.” 5 U. S. C. § 7106(a)(2)(B) (emphasis added). The FLRA rejected this view, ruling that the proposal would not invade management’s reserved rights since it would merely “require management to exercise its right to make contracting out determinations in accordance with whatever applicable laws and regulations exist at the time of such action.” 10 F. L. R. A. 3 (1982). In the course of rejecting the EEOC’s additional argument that the Circular itself forbade negotiation over the proposal, the FLRA went on to explain that even in the absence of AFGE’s proposed contract provision “disputes concerning conditions of employment arising in connection with the application of the Circular would be covered by the negotiated grievance procedure.” Id., at 5. A divided panel of the Court of Appeals for the District of Columbia Circuit affirmed the FLRA’s decision. 240 U. S. App. D. C. 218, 744 F. 2d 842 (1984). The Court of Appeals found the EEOC’s claim that any proposal regarding contracting out was barred by the management rights clause “untenable in light of the plain text of the clause.” Id., at 224, 744 F. 2d, at 848. Since management’s reserved right was conditioned upon compliance with “applicable laws,” and since the proposed contract language “essentially echoes the statutory requirement that contracting-out determinations be made in accordance with applicable laws,” the proposal would not affect the EEOC’s reserved authority to make contracting-out decisions. Ibid. The Court of Appeals also agreed with the FLRA that under 5 U. S. C. § 7103(a)(9)(C)(ii), which defines “grievance” to include “any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment,” an alleged violation of the Circular would be grievable even in the absence of AFGE’s proposal. 240 U. S. App. D. C., at 227, 744 F. 2d, at 850. The dissenting judge believed that the proposal was intended to and would place additional constraints on the EEOC’s reserved rights with respect to contracting out. Id., at 228, 744 F. 2d, at 852 (MacKinnon, J., dissenting). In this Court, the EEOC raises three principal arguments in support of its claim that AFGE’s proposal is nonnegotiable. First, although it did not so argue to the FLRA or the Court of Appeals, the EEOC now contends that Circular A-76 is not an “applicable la[w]” within the meaning of the management rights clause, and therefore that AFGE’s proposal, by requiring compliance with the Circular, would intrude on management’s reserved rights. Second, and again for the first time in this Court, the EEOC asserts that an alleged violation of the Circular would not be grievable absent AFGE’s proposal because the Circular is not a “law, rule, or regulation” within the meaning of § 7103(a)(9)’s definition of “grievance.” Third, the EEOC suggests that the Circular is a “Government-wide rule or regulation” for purposes of 5 U. S. C. § 7117(a)(1), and argues that § 7117(a)(1) excludes such rules or regulations from the scope of the duty to bargain. This argument, too, was never presented to the FLRA. Whatever their merit, we have concluded that these contentions, which are the linchpins of the EEOC’s brief in this Court, are not properly before us. The Act expressly provides that when an aggrieved party seeks judicial review of a final order of the FLRA, “[n]o objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.” 5 U. S. C. § 7123(c). This language is virtually identical to that found in § 10(e) of the National Labor Relations Act, 29 U. S. C. § 160(e), which provides that “[n]o objection that has not been urged before the [National Labor Relations] Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” This Court has interpreted § 10(e) to mean that a Court of Appeals is “without jurisdiction to consider” an issue not raised before the Board if the failure to do so is not excused by extraordinary circumstances. Woelke & Romero Framing, Inc. v. NLRB, 456 U. S. 645, 665-666 (1982). See also Detroit Edison Co. v. NLRB, 440 U. S. 301, 311, n. 10 (1979); May Department Stores Co. v. NLRB, 326 U. S. 376, 386, n. 5 (1945). The Court of Appeals for the District of Columbia Circuit has similarly held that under § 7123(c) review of “issues that an agency never placed before the Authority” is barred absent extraordinary circumstances. Department of Treasury v. FLRA, 227 U. S. App. D. C. 377, 382, 707 F. 2d 574, 579 (1983). See also FLRA v. Social Security Administration, 243 U. S. App. D. C. 338, 342, 753 F. 2d 156, 160-161 (1985). We agree with this interpretation of § 7123(c), which we think is not “waived” simply because the FLRA fails to invoke it. Section 7123(c) speaks to courts, not parties, and its plain language evinces an intent that the FLRA shall pass upon issues arising under the Act, thereby bringing its expertise to bear on the resolution of those issues. We need not decide whether an express waiver by the FLRA would be relevant in determining whether there are “extraordinary circumstances” excusing a party’s failure to raise an issue before that agency, for there is no such waiver here. We do, however, reject Justice Stevens’ theory of implied waiver, which, it should be noted, is not offered as an interpretation of the exception for “extraordinary circumstances.” We think that if Congress had meant there to be two exceptions to the bar raised by § 7123(c), instead of one, it would have said so. Since the EEOC has failed to excuse its failure to raise before the FLRA what now appear to be its principal objections to AFGE’s proposal, we decline to consider them. Conceivably, the EEOC’s failure to apprise the FLRA of its claim that the Circular is not a “law, rule, or regulation” for purposes of the Act’s definition of grievance is attributable to what appears to have been the FLRA’s sua sponte injection of the grievability issue into these proceedings in rendering its decision. But at most that might excuse the EEOC’s failure to press this claim before the FLRA; it does not excuse the EEOC’s failure to raise it at any point in the Court of Appeals. This latter failure was “brought to our attention . . . in respondent’s brief in opposition to the petition for certiorari,” Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985), as was the EEOC’s failure to raise its claim that the Circular is not an “applicable la[w].” See Brief for FLRA in Opposition 11, n. 8, 17, n. 17. Our normal practice, from which we see no reason to depart on this occasion, is to refrain from addressing issues not raised in the Court of Appeals. See, e. g., FTC v. Grolier, Inc. 462 U. S. 19, 23, n. 6 (1983); Rogers v. Lodge, 458 U. S. 613, 628, n. 10 (1982). Under these circumstances, several central issues on which resolution of the question presented may well turn cannot be reached or resolved. Accordingly, we dismiss the writ of certiorari as improvidently granted. It is so ordered.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 46 ]	sc_adminaction
LAWRENCE COUNTY et al. v. LEAD-DEADWOOD SCHOOL DISTRICT NO. 40-1 No. 83-240. Argued October 30, 1984 Decided January 9, 1985 White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 270. Alan Raywid argued the cause for appellants. With him on the brief were John D. Seiver and Roger Tellinghuisen. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Habicht, Carolyn F. Corwin, Anne S. Almy, and Anne H. Shields. A. P. Fuller argued the cause and filed a brief for appellee. Frederic Lee Ruck filed a brief for the National Association of Counties et al. as amici curiae urging reversal. Mark V. Meier henry, ■ Attorney General, and Mark Smith, Assistant Attorney General, filed a brief for the State of South Dakota as amicus curiae urging affirmance. Justice White delivered the opinion of the Court. The issue presented in this appeal is whether a State may regulate the distribution of funds that units of local government in that State receive from the Federal Government in lieu of taxes under 31 U. S. C. §6902. The Supreme Court of South Dakota sustained a state statute requiring local governments to spend these moneys in the same manner as they distribute taxes, holding that it was not inconsistent with the federal law. Because the language and legislative history of the federal statute indicate that Congress intended local governments to have more discretion in spending federal aid than the State would allow them, we hold that the state statute is invalid under the Supremacy Clause. Hence, we reverse. I The Payment in Lieu of Taxes Act, 31 U. S. C. §6901 et seq., compensates local governments for the loss of tax revenues resulting from the tax-immune status of federal lands located in their jurisdictions, and for the cost of providing services related to these lands. These “entitlement lands” include wilderness areas, national parks, and lands administered by the Bureau of Land Management. Under §6902, the Secretary of the Interior is required to make annual payments “to each unit of general local government in which entitlement land is located.” The local unit “may use the payment for any governmental purpose.” 31 U. S. C. § 6902(a). Appellant Lawrence County has received in excess of $400,000 under the Act. In 1979, South Dakota enacted a statute requiring local governments to distribute federal payments in lieu of taxes in the same way they distribute general tax revenues. S. D. Codified Laws §5-11-6 (1980). Since the county allocates approximately 60% of its general tax revenues to its school districts, the state statute would require the county to give the school districts 60% of the § 6902 payments it receives. The county, however, declined to distribute the funds in accordance with the state statute, claiming that the Payment in Lieu of Taxes Act gave it the discretion to spend the funds for any governmental purpose it chose. This state court litigation arose after the county’s federal court challenge to the state law was dismissed on jurisdictional grounds. Appellee Lead-Deadwood School District No. 40-1 then filed a complaint in state court, seeking a writ of mandamus to compel the county to distribute the federal funds in accordance with the state statute. The Circuit Court for the Eighth Judicial Circuit of South Dakota held that the state statute conflicted with federal law and was therefore invalid under the Supremacy Clause. The South Dakota Supreme Court reversed. 334 N. W. 2d 24 (1983). The court noted that the only limit imposed on the local government by § 6902 is that the funds must be used for a “governmental purpose.” Since support of school districts is a valid governmental purpose, the court concluded that the state statute was consistent with federal requirements. The court therefore found it unnecessary to go behind the plain language of the statute and examine its legislative history. Two justices dissented, concluding that the statute as a whole, along with the legislative history, indicated that Congress was directing the States to “keep their noses out of the manner in which a county would distribute these funds.” Id,., at 27. We noted probable jurisdiction, 466 U. S. 903 (1984). II Even if Congress has not expressly pre-empted state law in a given area, a state statute may nevertheless be invalid under the Supremacy Clause if it conflicts with federal law or “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984); Hines v. Davidowitz, 312 U. S. 52, 67 (1941). In determining whether the state statute at issue here impeded the operation of the federal Act, the South Dakota Supreme Court limited its inquiry to whether the funding of school districts was a “governmental purpose.” Concluding that it was, the court found no inconsistency between the state and federal provisions. This plain language analysis, however, is seriously flawed. The Act provides that “each unit of general local government” — in this case, the county — “may” use the moneys for “any” governmental purpose. This language appears to endow local governments with the discretion to spend in-lieu payments for any governmental purpose. It seems to say that if the local unit chooses to spend all of the money on roads, for example, it could do so. Under the state statute, however, that is forbidden: the funds must be allocated among the various services in the same manner as other revenues. The State insists that since money used as the law directs would be spent on proper governmental services, there is no inconsistency with § 6902. Under this interpretation, the word “may” confers no discretion on local governments that is immune from state control. The last sentence of § 6902(a) is drained of almost all meaning, since had it been omitted, the legal position of local governments would be precisely as described by the South Dakota Supreme Court. The sentence would become a mere admonition not to embezzle and to spend federal money on proper purposes. At the very least, § 6902 is ambiguous with respect to the degree of discretion it confers on local governments. Contrary to the views expressed in the court below, it does not of its own force dispose of the county’s case. Resort to other indicia of the meaning of the statutory language is therefore appropriate. First, we note that the Department of the Interior, the agency charged with administration of the Act, has consistently adhered to the view that local government units retain the discretion to spend the in-lieu payments for any governmental purpose they choose. In 1977, soon after the Act was passed, the Department promulgated 43 CFR § 1881.2 (1983), which provides that “[t]he monies paid to entitled units of local government may be used for any governmental purpose.” The Department has consistently interpreted the statute as foreclosing limitations on the use of in-lieu funds. Brief for United States as Amicus Curiae 18. The interpretation of an agency charged with the administration of a statute is entitled to substantial deference, Blum v. Bacon, 457 U. S. 132, 141 (1982), if it is a sensible reading of the statutory language, which it surely is in this case, and if it is not inconsistent with the legislative history, an inquiry that we now undertake. The Payment in Lieu of Taxes Act was passed in response to a comprehensive review of the policies applicable to the use, management, and disposition of federal lands. Public Land Law Review Commission, One Third of the Nation’s Land (1970). The Federal Government had for many years been providing payments to partially compensate state and local governments for revenues lost as a result of the presence of tax-exempt federal lands within their borders. But the Public Land Law Review Commission and Congress identified a number of flaws in the existing programs. Prominent among congressional concerns was that, under systems of direct payment to the States, local governments often received funds that were insufficient to cover the full cost of maintaining the federal lands within their jurisdictions. Where these lands consisted of wilderness or park areas, they attracted thousands of visitors each year. State governments might benefit from this federally inspired tourism through the collection of income or sales taxes, but these revenues would not accrue to local governments, who were often restricted to raising revenue from property taxes. Yet it was the local governments that bore the brunt of the expenses associated with federal lands, such as law enforcement, road maintenance, and the provision of public health services. A second defect in the existing schemes was that the States had too much leeway with respect to the disbursement of the funds. “Many of the revenue sharing provisions permit the States to make the decisions on how the funds will be distributed. In far too many States, the result has been that the funds are either kept at the State level and not distributed to local governments at all or are parcelled out in a manner which provides shares to local governments other than those in which the Federal lands are situated and where the impacts of the revenue and fee generating activities are felt.” S. Rep. No. 94-1262, p. 9 (1976). The School District acknowledges that this legislative history evidences a clear intent to distribute funds directly to units of local government, bypassing the State. But it argues that the South Dakota statute poses no impediment to the accomplishment of this goal: federal money still flows directly to the county; none of it is thereafter “parcelled out” to other counties that have no federal lands within their borders; and the federal statute merely defines the “point of distribution” of funds, the State having authority to prescribe the “plan of distribution.” As we see it, however, Congress was not merely concerned that local governments receive adequate amounts of money, and that they receive these amounts directly. Equally important was the objective of ensuring local governments the freedom and flexibility to spend the federal money as they saw fit. The Senate Committee on Interior and Insular Affairs, for example, observed: “[T]oo many of the [existing] revenue sharing provisions restrict the use of funds to only a few governmental services — most often the construction and maintenance of roads and schools. Yet, local governments are called upon to provide many other services to the Federal lands or as a direct or indirect result of activities on the Federal lands. ... It is only the most fortunate of local governments which is able to juggle its budget to make use of those earmarked funds in a manner which will accurately correspond to its community’s service and facility needs.” Ibid. Similarly, the House Committee concluded not only that “payments under [the Act] should go directly to units of local government,” but also that “these new payments should [not] be restricted or earmarked for use for specific purposes.” H. R. Rep. No. 94-1106, p. 12 (1976). The floor debates on the Act are replete with similar statements. The South Dakota statute, mandating that local governments spend these funds according-to a specific formula, runs directly counter to this objective. If the State may dictate a “plan” of distribution, as the School District contends, it may impose exactly the kinds of restrictions on the use of funds that Congress intended to prohibit. That Congress made a knowing choice to vest discretion in local governments over the expenditure of in-lieu moneys is apparent from the issues posed in the congressional hearings. The question of who should actually receive the payments under the Act was the subject of extensive discussion before the House Committee, and several alternatives were considered. Although a number of witnesses advocated payments directly to the State, others argued that the counties were the appropriate recipients because, among other considerations, the counties were in the best position to determine what local functions were most in need of additional funds. Congress also recognized that the costs associated with maintaining and serving federal lands were varied and unpredictable, and that local governments needed the flexibility to allocate in-lieu payments to these needs as they arose. The House and Senate Committee Reports listed, as examples of services required by the presence of federal lands, law enforcement, public health, sewage disposal, libraries, hospitals, recreational facilities, and search and rescue missions. The picture that emerges from the hearings on the Act is that there are many counties in which much of the land is owned by the Federal Government, and whose populations are markedly increased by tourists and hunters in the summer, in deer season, or on the weekends. These transients suffer accidents requiring emergency services or hospitalization for which they cannot always pay; commit crimes that call for police protection, prosecution, and incarceration; create waste that necessitates the construction of sewage treatment plants; use roads that must be paved and maintained; and generally impose a strain on a county’s limited resources without providing much in the way of compensating revenues. One cost unlikely to increase with the presence of this largely uninhabited federal land, however, is that of education. Two other features of the statutory scheme shed some light on the meaning of §6902. Another provision of the Act, 31 U. S. C. § 6904(b), provides expressly that in the case of certain additional short-term federal payments in connection with the acquisition of park or wilderness areas, the Secretary “shall distribute payments proportionally to units and school districts that lost real property taxes because of the acquisition of the interest.” That Congress explicitly provided for a proportionate allocation to school districts under this provision indicates that local governments were not to be required to allocate § 6902 funds to school districts. See Fedorenko v. United States, 449 U. S. 490, 512 (1981). A subsequent amendment to the Act provides additional support for this interpretation. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969). In 1983, Congress amended the Act to authorize States to make limited redistributions of payments among “units of general purpose local government” within the same county. Pub. L. 98-63, 97 Stat. 324, 31 U. S. C. §6907 (1982 ed., Supp. II). This amendment indicates that Congress found it necessary to provide expressly that States might reallocate funds in certain limited circumstances and that absent such express authority, States may not interfere in a county’s decision-making with respect to these federal funds. The amendment also demonstrates that even when Congress determined that funds should be reallocated to smaller governmental units, it was careful to provide that those units have responsibility for “general purpose” local government. School districts and water districts, being limited to a single purpose, were thus excluded once again from direct receipt of this form of federal aid. Against this background, we have little trouble in concluding that Congress intended to prohibit the kind of state-imposed limitation on the use of in-lieu payments represented by the South Dakota statute challenged in this case. III The School District and the State, as amicus curiae, argue that the South Dakota statute is a limited and therefore acceptable intrusion on a county’s discretion, merely requiring it to spend in-lieu payments in the same manner as it spends tax revenues. But we are inclined to credit the county’s insistence that the intrusion would not be negligible, or even modest. Absent elaborate and speculative calculations and budget juggling, the allocation of federal payments in the same proportion as local revenue would most likely result in a windfall for school districts and other entities that are already fully funded by local revenues. The federal money would not serve its intended purpose of compensating local governments for extraordinary or additional expenditures associated with federal lands. A county conceivably could avoid this result, but the strong congressional concern that local governments have maximum flexibility in this area indicates that counties should not encounter substantial interference from the State in allocating funds to the area of greatest need. The School District and the State also argue that because of concerns of federalism, the Federal Government may not intrude lightly into the State’s efforts to provide fiscal guidance to its subdivisions. The Federal Government, however, has not presumed to dictate the manner in which the counties may spend state in-lieu-of-tax payments. Rather, it has merely imposed a condition on its disbursement of federal funds. The condition in this instance is that the counties should not be denied the discretion to spend §6902 funds for any governmental purpose, including expenditures that are linked to federal lands within their borders. It is far from a novel proposition that pursuant to its powers under the Spending Clause, Congress may impose conditions on the receipt of federal funds, absent some independent constitutional bar. In our view, Congress was sufficiently clear in its intention to funnel § 6902 moneys directly to local governments, so that they might spend them for governmental purposes without substantial interference. IV Because existing methods of funding did not provide local governments with the funds and flexibility needed to meet the demands created by the presence of federal lands in their jurisdictions, Congress crafted a scheme designed to ensure that the funds would reach and be placed at the disposal of the affected local governments. The attempt of the South Dakota legislation to limit the manner in which counties or other qualified local governmental units may spend federal in-lieu-of-tax payments obstructs this congressional purpose and runs afoul of the Supremacy Clause. Congress intended the affected units of local government, such as Lawrence County, to be the managers of these funds, not merely the State’s cashiers. Accordingly, the judgment of the South Dakota Supreme Court is Reversed. The Payment in Lieu of Taxes Act formerly appeared at 31 U. S. C. § 1601 et seq. (1976 ed.). Title 31 of the United States Code was recodified in 1982 by Pub. L. 97-258, 96 Stat. 877 et seq. The recodification did not make any substantive change in the law. See H. R. Rep. No. 97-651, p. 3 (1982). Other “entitlement lands” are lands used by the Army Corps of Engineers for water resource development projects and dredge disposal areas, as well as lands on which semiactive and inactive military installations are located. See 31 U. S. C. §6901(1). A “unit of general local government” is defined elsewhere in the Act to include “a county (or parish), township, ... or city where the city is independent of any other unit of general local government.” 31 U. S. C. § 6901 (as amended by Pub. L. 98-63, 97 Stat. 323). Special purpose public bodies, such as school boards, are not included in the definition. H. R. Rep. No. 94-1106, p. 12 (1976). See also 43 CFR § 1881.0-5(b)(2) (1983). Section 6902(a) provides in full: “The Secretary of the Interior shall make a payment for each fiscal year to each unit of general local government in which entitlement land is located. A unit may use the payment for any governmental purpose.” The statute provides: “The county auditor shall distribute federal and state payments in lieu of tax proceeds in the same manner as taxes are distributed.” The county originally sought a declaratory judgment that the state statute conflicted with the federal Act and was therefore invalid under the Supremacy Clause. The Federal District Court entered a declaratory judgment in favor of the county. Lawrence County v. South Dakota, 513 F. Supp. 1040 (SD 1981). The Court of Appeals for the Eighth Circuit vacated that judgment, however, concluding that the county’s invocation of the Supremacy Clause did not convert the action into one arising under federal law for purposes of federal jurisdiction under 28 U. S. C. § 1331. 668 F. 2d 27 (1982). This ruling was erroneous. In Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983), we granted declaratory relief to a party challenging a state statute on pre-emption grounds, reaffirming the general rule that “[a] plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U. S. C. § 1331 to resolve.” Id., at 96, n. 14. The regulation exempts from this discretion payments required to be allocated proportionately to school districts under 31 U. S. C. § 6904. See infra, at 267. Two courts have found these regulations consistent with the Act. See Altus-Denning School District No. 31 v. Franklin County, 568 F. Supp. 95, 102 (WD Ark. 1983); Kendall v. Towns County, 146 Ga. App. 760, 247 S. E. 2d 577 (1978). In Altus-Denning, the court also held that an Arkansas statute, if interpreted to require counties to share § 6902 payments with school districts, would conflict with the Act’s “any governmental purpose” language. See S. Rep. No. 94-1262, pp. 5-6 (1976). Id., at 8-9. See also H. R. Rep. No. 94-1106, at 6. See also ibid. See 122 Cong. Rec. 25747 (1976) (statement of Rep. Weaver) (revenue-sharing payments are inadequate because earmarked for roads and schools, when needs are fire protection, sewage treatment, etc.); id., at 25750 (statement of Rep. Baucus); id., at 25754 (statement of Rep. McCormack). Hearings on H. R. 1678 and Related Bills before the Subcommittee on the Environment of the House Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 60 (1974) (statement of Rep. Dick Shoup of Montana). See also id., at 137 (statement of Kent Nelson, Six-County Economic Development District), 146-149 (statements of Hector Chiara and Guido Raehiele, Commissioners, Carbon County, Utah), 169-170 (statement of Dixie Leavitt, Utah State Senator). One reason this subject was under discussion was that a few years earlier, state-county rivalry had erupted over the distribution of general federal revenue-sharing funds. Representative Morris Udall, who chaired the hearings, referred to this controversy several times, asking witnesses to comment on whether payments in lieu of taxes should be distributed to the States or to local governments. See, e. g., id., at 71-72, 85-86, 146, 157. Pros and cons of both methods were aired, and various witnesses argued that state supervision was necessary to ensure that federal funds reached areas that did not themselves contain federal lands but felt the impact of their presence in neighboring counties. See id., at 17, 27-28, 85-86, 146. Thus, the decision to distribute the funds directly to the local governments was a considered one. See H. R. Rep. No. 94-1106, at 6; S. Rep. No. 94-1262, at 9. See Hearings on H. R. 9719 before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., 21 (1975) (hereinafter 1975 Hearings) (statement of George Buzianis, Chairman of Tooele County Commission, Utah); id., at 29 (statement of Calvin Black, Commissioner, San Juan County, Utah); id., at 102-103 (statement of Eyer Boies, Chairman of Board of County Commissioners, Elko County, Nevada); id., at 111 (statement of James Fairfield, Mineral County Board of Commissioners); id., at 258 (remarks of Rep. Jim Santini of Nevada); id., at 298 (statement of Rep. James Oberstar of Minnesota). Id., at 33 (statement of Ivan Matheson, Chairman, County Official Association); id., at 103 (statement of Eyer Boies, Chairman of Board of County Commissioners, Elko County, Nevada); id., at 151 (submission of Bill MacDonald, District Attorney, Humboldt County, Nevada); id., at 258 (remarks of Rep. Jim Santini of Nevada). Id., at 22 (statement of George Buzianis, Chairman of Tooele County Commission, Utah) (“[PJolice protection is one main problem, vandalism, and so forth. We do not have funds to go out and police these BLM [Bureau of Land Management] lands”); id., at 151 (submission of Bill MacDonald, District Attorney, Humboldt County, Nevada) (“The vast majority of criminal cases involve transients who are passing through and decide to knock over a general mercantile, give a motel a bad check, burglarize a home or ranch, get a tank of gas and run without paying... etc.”). In one county, the trial of a transient on a murder charge cost $25,000, “[w]ith the budget averaging $10,000 or $15,000 for this type of thing.” Id., at 146 (statement of Kenneth Lee, Lincoln County Commissioner). Id., at 45 (submission of Dale Sowards, President, Colorado Counties, Inc.); id., at 298-299 (statement of Rep. James Oberstar of Minnesota). Id., at 19 (statement of George Buzianis, Chairman, Tooele County Commission, Utah); id., at 27 (statement of Calvin Black, Commissioner, San Juan County, Utah); id., at 33 (statement of Ivan Matheson, Chairman, County Official Association). See id., at 280-281 (statement of Rep. Simon) (noting need for flexibility in distribution of federal funds, since “the need in Pope County is not for the schools”). To the extent that the presence of federal lands does increase education costs, other programs specifically provide compensation to cover those costs. See 31 U. S. C. § 6904(b); 20 U. S. C. § 236 et seq. The House Committee Report specifically noted that local governmental units with a single purpose, such as school districts, would not qualify to receive payments directly from the Federal Government. See n. 3, supra. Section 6907(a) provides: “Notwithstanding any other provision of this chapter, a State may enact legislation which requires that any payments which would be made to units of general local government pursuant to this chapter be reallocated and redistributed in whole or part to other smaller units of general purpose government which (1) are located within the boundaries of the larger unit of general local government, (2) provide general governmental services and (3) contain entitlement lands within their boundaries. Such reallocation or redistribution shall generally reflect the level of services provided by, and the number of entitlement acres within, the smaller unit of general local government.” This amendment came in response to a ruling by the Court of Appeals for the Sixth Circuit that the Secretary of the Interior had exceeded his authority under the Act in barring certain townships from receiving funds. Meade Township v. Andrus, 695 F. 2d 1006 (1982). The Secretary had promulgated a regulation allocating revenues to townships only if they were the “principal providers of services” on the local level. The Sixth Circuit held that this regulation conflicted with the Act’s assumption that more than one unit of local government may have jurisdiction over the same entitlement lands, and with the Act’s “expressed preference for smaller ‘units of local government.’” Id., at 1009. Congress amended the Act in 1983 in order to allow the Secretary to continue to make § 6902 payments directly to counties for reasons of administrative efficiency. If, however, in a particular State, the relevant governmental services are actually provided by smaller units than counties, the amendment gives the State the authority to reallocate the funds to those smaller units. See S. Rep. No. 98-141, p. 4 (1983); 129 Cong. Ree. S8444 (June 15, 1983) (statement of Sen. Durenberger). There is no indication in the legislative history of the amendment that it was intended to cede any power or money from local governments to the State. After its passage, one of its sponsors made it clear that any cost of administering the reallocation was to be borne by the States, not the local governments. 130 Cong. Rec. E1440-E1441 (Apr. 4, 1984) (statement of Rep. Kogovsek). See n. 3 , supra. The South Dakota statute, S. D. Codified Laws §5-11-6 (1980), requires that both state and federal in-lieu payments be distributed in the same manner as tax revenues. See, e. g., King v. Smith, 392 U. S. 309, 333, n. 34 (1968).	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
NATIONAL LABOR RELATIONS BOARD v. GAMBLE ENTERPRISES, INC. No. 238. Argued November 19, 1952. Decided March 9, 1953. Bernard Dunau argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, George J. Bott, David P. Findling and Mozart G. Ratner. Frank C. Heath argued the cause for respondent. With him on the brief was H. Chapman Rose. Henry Kaiser, Gerhard P. Van Arkel and Eugene Gress-man filed a brief for Local No. 24, American Federation of Musicians, as amicus curiae, supporting petitioner. Mr. Justice Burton delivered the opinion of the Court. This case is a companion to American Newspaper Publishers Assn. v. Labor Board, ante, p. 100. The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8 (b) (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, when it insists that the management of one of an interstate chain of theaters shall employ a local orchestra to play in connection with certain programs, although that management does not need or want to employ that orchestra. For the reasons hereafter stated, we hold that it does not. While the circumstances differ from those in the preceding case, the interpretation there given to § 8 (b) (6) is controlling here. For generations professional musicians have faced a shortage in the local employment needed to yield them a livelihood. They have been confronted with the competition of military bands, traveling bands, foreign musicians on tour, local amateur organizations and, more recently, technological developments in reproduction and broadcasting. To help them conserve local sources of employment, they developed local protective societies. Since 1896, they also have organized and maintained on a national scale the American Federation of Musicians, affiliated with the American Federation of Labor. By 1943, practically all professional instrumental performers and conductors in the United States had joined the Federation, establishing a membership of over 200,000, with 10,000 more in Canada. The Federation uses its nationwide control of professional talent to help individual members and local unions. It insists that traveling band contracts be subject to its rules, laws and regulations. Article 18, § 4, of its ByLaws provides: “Traveling members cannot, without the consent of a Local, play any presentation performances in its jurisdiction unless a local house orchestra is also employed.” From this background we turn to the instant case. For more than 12 years the Palace Theater in Akron, Ohio, has been one of an interstate chain of theaters managed by respondent, Gamble Enterprises, Inc., which is a Washington corporation with its principal office in New York. Before the decline of vaudeville and until about 1940, respondent employed a local orchestra of nine union musicians to play for stage acts at that theater. When a traveling band occupied the stage, the local orchestra played from the pit for the vaudeville acts and, at times, augmented the performance of the traveling band. Since 1940, respondent has used the Palace for showing motion pictures with occasional appearances of traveling bands. Between 1940 and 1947, the local musicians, no longer employed on a regular basis, held periodic rehearsals at the theater and were available when required. When a traveling band appeared there, respondent paid the members of the local orchestra a sum equal to the minimum union wages for a similar engagement but they played no music. The Taft-Hartley Act, containing §8 (b)(6), was passed, over the President’s veto, June 23, 1947, and took effect August 22. Between July 2 and November 12, seven performances of traveling bands were presented on the Palace stage. Local musicians were neither used nor paid on those occasions. They raised no objections and made no demands for “stand-by” payments. However, in October, 1947, the American Federation of Musicians, Local No. 24 of Akron, Ohio, here called the union, opened negotiations with respondent for the latter’s employment of a pit orchestra of local musicians whenever a traveling band performed on the stage. The pit orchestra was to play overtures, “intermissions” and “chasers” (the latter while patrons were leaving the theater). The union required acceptance of this proposal as a condition of its consent to local appearances of traveling bands. Respondent declined the offer and a traveling band scheduled to appear November 20 canceled its engagement on learning that the union had withheld its consent. May 8, 1949, the union made a new proposal. It sought a guaranty that a local orchestra would be employed by respondent on some number of occasions having a relation to the number of traveling band appear-anees. This and similar proposals were declined on the ground that the local orchestra was neither necessary nor desired. Accordingly, in July, 1949, the union again declined to consent to the appearance of a traveling band desired by respondent and the band did not appear. In December an arrangement was agreed upon locally for the employment of a local orchestra to play in connection with a vaudeville engagement on condition that the union would consent to a later traveling band appearance without a local orchestra. Respondent’s New York office disapproved the plan and the record before us discloses no further agreement. In 1949, respondent filed charges with the National Labor Relations Board asserting that the union was engaging in the unfair labor practice defined in § 8 (b)(6). The Regional Director of the Board issued a complaint to that effect. After a hearing the trial examiner found respondent to be engaged in interstate commerce and recommended that the Board assert jurisdiction. 92 N. L. R. B. 1528, 1538, 1540. On the merits, he concluded that the union’s conduct “was nothing more or less than a proposal for a stand-by engagement,” but he was not convinced that the union’s demands were an “attempt to cause” any payment to be made “in the nature of an exaction.” He, accordingly, recommended dismissal of the complaint. Id., at 1549, 1550, 1551. The Board unanimously agreed to assert jurisdiction. With one dissent, it also ordered dismissal of the complaint, but it did so on grounds differing from those urged by the trial examiner. Id., at 1528-1529. It said: “On the contrary, the instant record shows that in seeking employment of a local orchestra, the . . . [union] insisted that such orchestra be permitted to play at times which would not conflict with the traveling bands’ renditions. Thus, the record herein does not justify a finding that, during the period embraced by the charges herein, the . . . [union] was pursuing its old policy and was attempting to cause the charging party to make payments to local musicians for services which were not to be performed. “In our opinion, Section 8 (b) (6) was not intended to reach cases where a labor organization seeks actual employment for its members, even in situations where the employer does not want, does not need, and is not willing to accept such services. Whether it is desirable that such objective should be made the subject of an unfair labor practice is a matter for further congressional action, but we believe that such objective is not proscribed by the limited provisions of Section 8 (b)(6). “Upon the entire record in the case, we find that the . . . [union] has not been guilty of unfair labor practices within the meaning of Section 8 (b)(6) of the Act.” Id., at 1531, 1533-1534. The Court of Appeals for the Sixth Circuit did not disturb the Board’s finding that the union sought actual employment for its members, but it held, nevertheless, that the union was engaging in a labor practice declared unfair by § 8(b) (6). It, therefore, set aside the Board’s order of dismissal and remanded the cause. 196 F. 2d 61. For reasons stated in the American Newspaper case, ante, p. 100, we granted certiorari. 344 U. S. 814. We denied the union’s motion to intervene, 344 U. S. 872, but, with the consent of the parties, it filed a brief as amicus curiae, supporting the Board. We accept the finding of the Board, made upon the entire record, that the union was seeking actual employment for its members and not mere “stand-by” pay. The Board recognized that, formerly, before §8 (b)(6) had taken effect, the union had received “stand-by” payments in connection with traveling band appearances. Since then, the union has requested no such payments and has received none. It has, however, requested and consistently negotiated for actual employment in connection with traveling band and vaudeville appearances. It has suggested various ways in which a local orchestra could earn pay for performing competent work and, upon those terms, it has offered to consent to the appearance of trav- ■ eling bands which are Federation-controlled. Respondent, with equal consistency, has declined these offers as it had a right to do. Since we and the Board treat the union’s proposals as in good faith contemplating the performance of actual services, we agree that the union has not, on this record, engaged in a practice proscribed by § 8 (b)(6). It has remained for respondent to accept or reject the union’s offers on their merits in the fight of all material circumstances. We do not find it necessary to determine also whether such offers were “in the nature of an exaction.” We are not dealing here with offers of mere “token” or nominal services. The proposals before us were appropriately treated by the Board as offers in good faith of substantial performances by competent musicians. There is no reason to think that sham can be substituted for substance under § 8 (b) (6) any more than under any other statute. Payments for “standing-by,” or for the substantial equivalent of “standing-by,” are not payments for services performed, but when an employer receives a bona fide offer of competent performance of relevant services, it remains for the employer, through free and fair negotiation, to determine whether such offer shall be accepted and what compensation shall be paid for the work done. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to it. Reversed and remanded. “Sec. 8. “(b) It shall be an unfair labor practice for a labor organization or its agents— “(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. . . .” 61 Stat. 140-142, 29 ü. S. C. (Supp. V) §158 (b)(6). Countryman, The Organized Musicians, 16 U. of Chi. L. Rev. 56-85, 239-297. Article 18, §3, provides: “Traveling members appearing in acts with vaudeville unit or presentation shows are not permitted to play for any other-acts on the bill without consent of the Local.” The union suggested four plans. Each called for actual playing of music by a local union orchestra in connection with the operation of the theater: (1) to play overtures, intermissions and chasers; (2) to play the music required for vaudeville acts not an integral part of a traveling band ensemble; (3) to perform on stage with vaudeville acts booked by respondent; or (4) to play at half of the total number of respondent’s stage shows each year. In addition to the legislative history cited in the American Newspaper case, the following explanation by Senator Ball emphasizes the point that § 8 (b) (6) proscribes only payments where no work is done. As a member of the Senate Committee on Labor and Public Welfare, and as one who had served as a Senate conferee, he made it on the floor of the Senate immediately preceding the passage of the bill, over the President’s veto, June 23, 1947: “There is not a word in that [§ 8 (b)(6)], Mr. President, about ‘featherbedding.’ It says that it is an unfair practice for a union to force an employer to pay for work which is not performed. In the colloquy on this floor between the Senator from Florida [Mr. Pepper] and the Senator from Ohio [Mr. Taft], before the bill was passed, it was made abundantly clear that it did not apply to rest periods, it did not apply to speed-ups or safety provisions, or to anything of that nature; it applied only to situations, for instance, where the Musicians’ Federation forces an employer to hire one orchestra and then to pay for another stand-by orchestra, which does no work at all.” (Emphasis supplied.) 93 Cong. Rec. 7529.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 81 ]	sc_adminaction
COMMISSIONER OF INTERNAL REVENUE v. PORTLAND CEMENT COMPANY OF UTAH No. 79-1907. Argued January 13, 1981 Decided March 3, 1981 Powell, J., delivered the opinion for a unanimous Court. Stuart A. Smith argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General Murray, Jonathan S. Cohen, and David English Carmack. Dennis P. Bedell argued the cause for respondent. With him on the brief were Mark L. Evans, John J. Martin, and Glen E. Fuller. Richard A. Freling and David G. Glickman filed a brief for Centex Corp. as amicus curiae urging affirmance. Justice Powell delivered the opinion of the Court. This case concerns the depletion deduction taken under § 611 of the Internal Revenue Code of 1954, 26 U. S. C. § 611, by a company that mines and manufactures Portland cement. The question presented is whether the company’s “first marketable product,” for the purpose of determining gross income from mining by the proportionate profits method, is cement, whether sold in bulk or in bags, or only cement sold in bulk. I Respondent, Portland Cement Co. of Utah, is an integrated miner-manufacturer. It mines argillaceous limestone rock, known in the trade as cement rock, and it manufactures the rock into Portland cement. As a miner, respondent is allowed by § 611 (a) to deduct from its taxable income an amount that permits it a recoupment of capital investment in the depleting mineral. Section 611 (a) provides: “In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary....” The amount which respondent may deduct is a percentage of its “gross income from the property.” 26 U. S. C. § 613 (a). In respondent’s case, gross income from property means “gross income from mining.” Thus, respondent may deduct from its taxable income a percentage of the gross income it receives from mining. If respondent were only a miner and therefore sold the product of its mining, respondent’s gross income from mining would be the receipts from its sales. But as an integrated miner-manufacturer, respondent itself uses the product of its mining. Respondent therefore has no actual gross income from mining and must base its depletion deduction upon a constructive gross income from mining. See United States v. Cannelton Sewer Pipe Co., 364 U. S. 76, 86 (1960). The Commissioner of Internal Revenue, petitioner here, has prescribed in Treasury Regulations two methods of determining constructive gross income from mining. If other miners in the industry sell the product of their mining on an open market, then miners who do not sell their product must use “the representative market or field price” to compute their constructive gross income from mining. Treas. Reg. § 1.613-4 (c), 26 CPR § 1.613-4 (c) (1980). If other miners do not sell their mining product and a representative market or field price cannot be determined, as is the case in the integrated cement industry, then constructive gross income from mining must be determined by the “proportionate profits method.” § 1.613-4 (d). In addition to providing these two methods, the Commissioner also has provided that a taxpayer may compute a constructive gross income from mining by any other method that, upon the taxpayer’s request, the Commissioner determines to be more appropriate than the proportionate profits method under the taxpayer’s particular circumstances. § 1.613-4 (d) (1) (ii). For each of the tax years at issue in this case, respondent used the proportionate profits method to compute its constructive gross income from mining. The proportionate profits method uses the costs of and proceeds from the taxpayer’s “first marketable product” to derive the taxpayer’s constructive gross income from mining. The principle of the method is that each dollar of the total costs which the taxpayer incurs to produce, sell, and transport its first marketable product earns the same proportionate part of the proceeds from sales of that product. § 1.613-4 (d)(4)(i). The objective of the method is to identify— from among the total proceeds from sales of the first marketable product — that portion of the proceeds that has been earned by the costs which the taxpayer incurred in its mining operations. To identify that portion of the proceeds, the formula requires the taxpayer to apportion the total proceeds from its first marketable product between mining income and total income in the same ratio as its mining costs bear to its total costs. The amount of proceeds which bears the same relationship to total proceeds as mining costs bear to total costs is the taxpayer’s constructive gross income from mining. On its returns for the tax years in question, respondent took the position that its first marketable product was cement sold in bulk. Respondent sells most of its cement in bulk, by loading finished cement directly from silos into customers’ trucks or railroad tank cars. But respondent also sells cement in bags to customers who want to buy relatively small quantities. Cement is bagged by running it from the storage silo into a bin above a bagging machine, which then pours the cement into bags and seals them. The cost that respondent incurs for bags and bagging exceeds the increase in proceeds, known as the bagging premium, that respondent receives for selling cement in bags. Respondent still receives a profit on the cement it sells in bags, but less profit than if it had sold the cement in bulk. Because respondent considered its first marketable product to be cement sold in bulk rather than all cement sold, whether in bulk or in bags, respondent did not include proceeds from the sale of cement in bags in the total-proceeds figure of the proportionate profits method. Nor did respondent include in the total-costs figure the costs it incurred for bags, bagging, storage, distribution, and sales. The result of this position was that the proportionate profits method yielded a greater constructive gross income from mining, and respondent reported a correspondingly greater depletion deduction, than would have been the case if respondent had included those proceeds and costs in its computation by the method. After an audit, the Commissioner determined that respondent’s reported tax liabilities were deficient. The Commissioner took the position that respondent’s first marketable product is cement, whether sold in bulk or in bags, that respondent therefore should have included proceeds from its sales of bagged cement in its total-proceeds figure, and also that respondent should have included in its total-costs figure the costs it incurred for bags, bagging, storage, distribution, and sales. Respondent then filed this suit in the Tax Court for a redetermination. The Tax Court, following its rule of applying the law of the court of appeals to which an appeal would be taken, relied upon United States v. Ideal Basic Industries, Inc., 404 F. 2d 122 (CA10 1968), cert. denied, 395 U. S. 936 (1969), and accepted respondent’s position. 36 TCM 578 (1977), ¶ 77,137 P-H Memo TC. Ideal Basic Industries had held that cement sold in bulk is the first marketable product of an integrated miner-manufacturer and that revenues from sales of cement in bags, and the costs of bags, bagging, storage, distribution, and sales, should not be included in calculations under the proportionate profits method. 404 F. 2d, at 125-126. The Court of Appeals for the Tenth Circuit affirmed, also adhering to Ideal Basic Industries. 614 F. 2d 724 (1980) (per curiam). It rejected the Commissioner’s argument that Treasury Regulations dictate the opposite result. We granted the Commissioner’s petition for a writ of certiorari because other Courts of Appeals have accepted the Commissioner’s position in cases with substantially identical facts. 449 U. S. 818 (1980). We now reverse. II Congress requires in § 611 that the allowance of the depletion deduction is “in all cases to be made under regulations prescribed by the Secretary.” The Commissioner provided the proportionate profits method pursuant to this delegation of authority. Also pursuant to this authority, the Commissioner has promulgated regulations which specifically address the questions before us. We find these regulations dispositive. The Treasury Regulations define “first marketable product” as “the product (or group of essentially the same products) produced by the taxpayer as a result of the application of nonmining processes, in the form or condition in which such product or products are first marketed in significant quantities by the taxpayer or by others in the taxpayer’s marketing area.” 26 CFR § 1.613-4 (d)(4)(iv) (1980). This definition continues: “For this purpose, bulk and packaged products are considered to be essentially the same product.... The first marketable product or group of products does not include any product which results from additional manufacturing or other nonmining processes applied to the product or products first marketed in significant quantities by the taxpayer or others in the taxpayer’s marketing area. For example, if a cement manufacturer sells his own finished cement in bulk and bags and also sells concrete blocks or dry ready-mix aggregates containing additives, the finished cement, in bulk and bags, constitutes the first marketable product or group of products produced by him.” This regulation supports the Commissioner’s position that cement sold in bulk is the same product as cement sold in bags, and that the container for the cement — whether a tank car supplied by the customer or a bag supplied by respondent — does not distinguish cement in bulk from cement in bags for the purpose of determining respondent’s first marketable product. Federal Courts of Appeals other than the court below have relied on the regulation to uphold the Commissioner’s position. General Portland Cement Co. v. United States, 628 F. 2d 321, 323 (CA5 1980), cert. pending, No. 80-1211; United States v. California Portland Cement Co., 413 F. 2d 161 (CA9 1969). Indeed, the Commissioner’s position also is supported by respondent’s stipulation in the Tax Court that “[t]hat portion of its cement sold... in bags is the same material as the cement sold in bulk.” The Treasury Regulations also support the Commissioner’s position that respondent must include in the total-costs figure of the method the costs of bags, bagging, storage, and distribution. To derive the portion of total proceeds that reflects the ratio between respondent’s mining costs and its total costs, respondent must include in the total-costs figure “all the mining and nonmining costs paid or incurred to produce, sell, and transport the first marketable product.” 26 CFR § 1.613-4 (d)(4)(h) (1980). The exclusion of non-mining costs from the total-costs figure has the effect of including the proportionate profits earned by such costs within respondent’s depletion base. Such inclusion enhances respondent’s depletion base by proceeds that were not earned by respondent’s mining operation, and accordingly respondent’s depletion deduction becomes a recoupment for more than the exhaustion of respondent’s mine. It is undisputed, however, that Congress allows the depletion deduction to permit recoupment for the exhaustion of the mineral only. See United States v. Cannelton Sewer Pipe Co., 364 U. S., at 81, 85-86; Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312 (1956); General Portland Cement Co. v. United States, supra, at 322. It also is undisputed that the Treasury Regulations classify the costs of bags, bagging, storage, and distribution as nonmining costs. 26 CFR § 1.613-4 (d)(3) (iii) (1980). Courts of Appeals have accepted the Commissioner’s position on this question also. General Portland Cement Co. v. United States, supra, at 326; Southwestern Portland Cement Co. v. United States, 435 F. 2d 504, 508, 510 (CA9 1970); United States v. California Portland Cement Co., supra, at 168-169; Whitehall Cement Manufacturing Co. v. United States, 369 F. 2d 468, 473-474 (CA3 1966). Finally, the Treasury Regulations support the Commissioner’s position that respondent must include as nonmining costs the costs incurred in selling the first marketable product. The regulations provide that integrated miner-manufacturers must treat sales expenses as nonmining costs absent evidence that unintegrated miners typically incur such expenses in selling their mineral product. §§ 1.613-4 (d) (3) (iv), 1.613-5 (c)(4)(ii). These regulations simply recognize that sales of finished cement occur after the point at which an integrated miner-manufacturer’s mining phase ends and its manufacturing phase begins. See 26 U. S. C. § 613 (c) (4) (F); cf. General Portland Cement Co. v. United States, supra, at 333. Integrated miner-manufacturers may allocate selling costs between their mining and manufacturing phases if they can show that unintegrated miners typically incur selling expenses, for that maintains a parity of tax treatment between integrated miner-manufacturers and unintegrated miners. But respondent has not put forth such evidence in this case, there being no unintegrated miners in the cement industry. These regulations command our respect, for Congress has delegated to the Secretary of the Treasury, not to this Court, the task “of administering the tax laws of the Nation.” United States v. Cartwright, 411 U. S. 546, 550 (1973); accord, United States v. Correll, 389 U. S. 299, 307 (1967); see 26 U. S. C. §7805 (a). We therefore must defer to Treasury Regulations that “implement the congressional mandate in some reasonable manner.” United States v. Correll, supra, at 307; accord, National Muffler Dealers Assn. v. United States, 440 U. S. 472, 476-477 (1979). To put the same principle conversely, Treasury Regulations “must be sustained unless unreasonable and plainly inconsistent with the revenue statutes.” Commissioner v. South Texas Lumber Co., 333 U. S. 496, 501 (1948); accord, Fulman v. United States, 434 U. S. 528, 533 (1978); Bingler v. Johnson, 394 U. S. 741, 749-751 (1969). Indeed, our customary deference to Treasury Regulations is particularly appropriate in this case, for the Court previously has recognized the necessity of a “broad rule-making delegation” of authority in the area of depletion: “As Congress obviously could not foresee the multifarious circumstances which would involve questions of depletion, it delegated to the Commissioner the duty of making the regulations.” Douglas v. Commissioner, 322 U. S. 275, 280, 281 (1944); accord, Helvering v. Wilshire Oil Co., Inc., 308 U. S. 90, 102-103 (1939). Ill Respondent does not contend that these Treasury Regulations are either unreasonable on their face or inconsistent with the Code. To the contrary, respondent acknowledges that several courts have found the regulations to prescribe a reasonable formula for determining gross income from mining in cases where no actual income is realized and no representative market price is available. Respondent’s contention is that the Commissioner’s position will yield a distorted constructive gross income from mining if it is applied without regard to the particular circumstances in this case. A Respondent’s position rests upon (i) an assumption about gross income from mining and (ii) an interpretation of this Court’s decision in United States v. Cannelton Sewer Pipe Co., 364 U. S. 76 (1960). Respondent deems "gross income from mining,” for the purpose of the percentage depletion deduction, to be the same thing as “the market value of the extracted minerals” at the end of the mining phase, Brief for Respondent 14; and respondent reads Cannelton to hold that, for the purpose of determining gross income from mining, the mining phase of an integrated mining-manufacturing operation should be considered one independent business selling its product to another independent business, the manufacturing phase. On the basis of these notions, respondent perceives a potential for distortion of constructive gross income inhering in the premise of the proportionate profits method. The premise of that method is that each dollar of costs, mining and nonmining alike, earns the same proportionate part of the proceeds from the first marketable product. In respondent’s view, however, it simply will not be true in some cases that each dollar of costs earns the same share of proceeds. For example, respondent contends, market forces and arm’s-length negotiations may so affect market value when an independent miner sells to an independent manufacturer that it will not be true that each dollar of cost earns the same share of proceeds; and respondent contends that it certainly is not true in this case that each of its dollars of cost earned the same share of proceeds, for the cost of bags and bagging exceeds the bagging premium. Respondent does not conclude from this reasoning that the proportionate profits method is unreasonable in itself. Rather, it argues that the method will distort constructive gross income from mining to the extent that the particular facts of a case deviate from the method’s premise, and that the possibility of distortion increases as costs and proceeds attending postmining processes are included. To remedy this, respondent asks that the Commissioner take into account the “peculiar” circumstance that respondent’s bagging costs exceed its bagging premium. If this were done, respondent says, the distortion that it perceives could be obviated by considering its first marketable product to be only cement sold in bulk, not cement sold both in bulk and in bags. If only bulk sales are considered to be the first marketable product, then the proceeds from cement sold in bags, and the costs of bags, bagging, storage, and distribution, will be excluded from the proportionate profits method. This was essentially the reasoning and holding of Ideal Basic Industries, 404 F. 2d, at 125-127. We cannot accept respondent’s contention, for it misper-ceives both the meaning of “gross income from mining” and the holding in Cannelton. Respondent cites nothing to support the assumption that gross income from mining means market value of the mining product. The language of §§613 (a) and (c) does not support this assumption; and Helvering v. Mountain Producers Corp., 303 U. S. 376, 381-382 (1938), rejected it. See also Commissioner v. Southwest Exploration Co., 350 U. S., at 312. Under the Code and regulations, gross income from mining means income received, whether actually or constructively, without regard to value. Nor does Cannelton support respondent’s argument. That case did not involve the proportionate profits method of determining constructive gross income from mining. The question there, under an earlier statutory definition of “mining,” was when the mining phase ended in the operation of an integrated miner-manufacturer of burnt clay products. See 364 U. S., at 84, and n. 8. In interpreting the definition of “mining,” the Court observed that “the Congress intended integrated mining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication.” Id., at 89. This statement, in the context in which it occurs, does not support respondent’s contention that the method used to determine constructive gross income must take into account forces that might cause income to differ from value. Nor does the difference between bagging costs and the bagging premium warrant a deviation from the Treasury Regulation’s definition of “first marketable product.” Respondent receives a net profit on every bag of cement that it sells, despite the fact that bagging costs exceed markup on the product. It is reasonable to infer, therefore, that the costs of bagging the cement contribute to respondent’s profits from sales of cement in bags. Courts of Appeals other than the court below have found this inference reasonable. General Portland Cement Co. v. United States, 628 F. 2d, at 330-331; Whitehall Cement Manufacturing Co. v. United States, 369 F. 2d, at 474; see also United States v. California Portland Cement, 413 F. 2d, at 169. B There remains only respondent’s contention that the costs it incurred in the storage, distribution, and sales of its first marketable product, if they must be included in the proportionate profits method, should be treated as indirect costs which benefit the entire mining-manufacturing operation. For that reason, respondent urges that these costs should be allocated between mining and manufacturing. The statutory definition of “mining” forecloses this contention. Section 613 (c) (4) (F) of the Code defines “mining” to include all processes- up to the introduction of the kiln feed into the kiln, “but not... any subsequent process.” The regulations recognize that storage, distribution, and sales are “subsequent process [es],” and we find the regulations reasonable. 26 CFR § 1.613-4 (d) (3) (iii) (1980) (storage and distribution); §§ 1.613-4 (d) (3) (iv) and 1.613-5 (c)(4)(ii) (sales). These regulations allow a different treatment only for sales expenses. See supra, at 168-169. Respondent, who bore the burden of proof in the Tax Court, made no showing to warrant treating sales expenses as anything but nonmining costs. IV In sum, the Treasury Regulations defining first marketable product, and those prescribing the treatment of the costs of bags, bagging, storage, distribution, and sales, dictate the result in this case. To be sure, the proportionate profits method can only approximate gross income from mining. The Commissioner does not contend that the method does more than approximate. But an approximation must suffice absent an actual gross income from mining/and respondent concedes that the proportionate profits method is a reasonable means of approximating. The method also is a means that respondent accepted, as it did not seek the Commissioner’s approval of any other method. Accordingly, respondent must apply the method as prescribed by the Commissioner. The judgment of the Court of Appeals is reversed. It is so ordered. As suggested by the term “integrated miner-manufacturer,” respondent’s operation has two phases: mining and manufacturing. The mining phase begins with the blasting of cement rock from the face of respondent’s quarry. After crushing the rock into pieces about one cubic inch in size, respondent transports the rock to its processing plant, which is about 12 miles from its quarry in Utah. Respondent then grinds the rock finely and adds water, producing a mud known as “slurry.” Respondent feeds the slurry from tanks into fired kilns that heat it into a hard glass-like substance known as a “clinker.” Once the clinker is cooled, respondent grinds it with gypsum to produce finished Portland cement. The finished cement is placed in storage silos to await sales to customers. There is no dispute as to when respondent’s mining phase ends and its manufacturing phase begins. Section 613 (c) (2) of the Code, 26 U. S. C. §613 (c)(2), defines “mining” to include “not merely the extraction of the ores or minerals from the ground but also the treatment process considered as mining described in paragraph (4) (and the treatment processes necessary or incidental thereto), and so much of the transportation of ores or minerals (whether or not by common carrier) from the point of extraction from the ground to the plants or mills in which such treatment processes are applied thereto as is not in excess of 50 miles....” Paragraph (4) (F) of § 613 (c) describes the treatment processes considered as mining to be — “in the case of calcium carbonates and other minerals when used in making cement — all processes (other than preheating of the kiln feed) applied prior to the introduction of the kiln feed into the kiln, but not including any subsequent process.” When these definitions are applied, respondent’s mining phase ends when the slurry has been produced and is stored in tanks to await introduction into the kilns. The Tax Court so found, 36 TCM 578, 579 (1977), ¶ 77.137, p. 582, P-H Memo TC, and the parties agree. All citations to the Internal Revenue Code are to the Code of 1954, unless stated otherwise. Section 613 (a) reads in pertinent part: “In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property... For tax years beginning on or prior to October 9, 1969, the percentage specified by subsection (b) of § 613 for the depletion of calcium carbonates, the chemical name for cement rock, was 15%. 26 U. S. C. § 613 (b)(7) (1964 ed.). For tax years beginning after October 9, 1969, the percentage was 14%. 26 U. S. C. §613 (b)(7). Title 26 U. S. C. §613 (c)(1) (1976 ed., Supp. III) provides: “The term ‘gross income from the property’ means, in the case of a property other than an oil or gas well and other than a geothermal deposit, the gross income from mining.” See n. 1, supra. The Commissioner himself has suggested two other methods that a taxpayer may propose as more appropriate than the proportionate profits method. See 26 CFR §§ 1.613-4 (d) (1) (ii) (e), (5), (6), (1980). The three tax years at issue in this case are those ending on March 31, 1970, 1971, and 1972. The Treasury Regulations explain the proportionate profits method this way: “(i) The objective of the 'proportionate profits method’ of computation is to ascertain gross income from mining by applying the principle that each dollar of the total costs paid or incurred to produce, sell, and transport the first marketable product or group of products (as defined in subdivision (iv) of this subparagraph) earns the same percentage of profit. Accordingly, in the proportionate profits method no ranking of costs is permissible which results in excluding or minimizing the effect of any costs incurred to produce, sell, and transport the first marketable product or group of products.... “(ii) The proportionate profits method of computation is applied by multiplying the taxpayer’s gross sales (actual or constructive) of his first marketable product or group of products... by a fraction whose numerator is the sum of all the costs allocable to those mining processes which are applied to produce, sell, and transport the first marketable product or group of products, and whose denominator is the total of all the mining and nonmining costs paid or incurred to produce, sell, and transport the first marketable product or group of products.... The method as described herein is merely a restatement of the method formerly set forth in the second sentence of Regulations 118, section 39.23 (m)-l (e)(3) (1939 Code). The proportionate profits method of computation may be illustrated by the following equation: MiDiD.g_Cosii X Gross SaIes=Gr°sS Income Total Costs fr°m Mining” 26 CFR §§ 1.613-4 (d) (4) (i), (ii) (1980). The Tax Court has captured the gist of the method in fewer words: “The purpose of the proportionate-profits formula is to separate the sales price of a product into its mining and nonmining components.” North Carolina Granite Corp. v. Commissioner, 56 T. C. 1281, 1291 (1971). During the tax years in question, respondent sold approximately 92-94% of its finished cement in bulk. Respondent sold the other 6-8% in bags. The parties stipulated in the Tax Court that respondent’s bagging costs exceeded the bagging premium by $55,410.88 for tax year 1970, by $66,667.45 for tax year 1971, and by $64,590.41 for tax year 1972. The parties stipulated in the Tax Court “that although for each year there was an excess of costs over bag premium,... [respondent] nevertheless realized a net profit on the sale of each bag of cement.” To state respondent’s position in the formulaic terms used in Treas. Reg. § 1.613-4 (d) (4) (ii), 26 CFR § 1.613-4 (d) (4) (ii) (1980), respondent did not include proceeds from the sale of cement in bags in the multiplier of the proportionate profits method; and respondent did not include the costs of bags, bagging, storage, distribution, and sales in the denominator of the method’s fraction. The asserted deficiencies were $44,200, $41,509, and $7,175 for tax years 1970, 1971, and 1972, respectively. See 36 TCM, at 578, ¶ 77,137, p. 582, P-H Memo TC. See Golsen v. Commissioner, 54 T. C. 742 (1970), aff’d on other grounds, 445 F. 2d 985 (CA10), cert. denied, 404 U. S. 940 (1971). See General Portland Cement Co. v. United States, 628 F. 2d 321 (CA5 1980), cert. pending, No. 80-1211; Arvonia-Buckingham Slate Co. v. United States, 426 F. 2d 484 (CA4 1970); United States v. California Portland Cement Co., 413 F. 2d 161 (CA9 1969); Whitehall Cement Manufacturing Co. v. United States, 369 F. 2d 468 (CA3 1966). The Commissioner has prescribed the computation of gross income from mining by reference to proportionate profits in successive regulations since 1940. The principle now set forth in Treas. Reg. § 1.613-4 (d)(4) first appeared in Treas. Regs. 103, § 19.23 (m)-l (f) (1940), and it continued in successive regulations	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 68 ]	sc_adminaction
CALIFORNIA et al. v. LaRUE et al. No. 71-36. Argued October 10, 1972 Decided December 5, 1972 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 119. Douglas, J., post, p. 120, Brennan, J., post, p. 123, and Marshall, J., post, p. 123, filed dissenting opinions. L. Stephen Porter, Deputy Attorney General of California, Harrison W. Hertzberg and Kenneth Scholtz argued the cause for appellees. MR. Justice Rehnquist delivered the opinion of the Court. Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U. S. C. §§ 1331, 1343, 2201, 2202, and 42 U. S. C. § 1983. A three-judge court was convened in accordance with 28 U. S. C. §§2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution. Concerned with the progression in a few years’ time from “topless” dancers to “bottomless” dancers and other forms of “live entertainment” in bars and nightclubs that it licensed, the Department heard a number of witnesses on this subject at public hearings held prior to the promulgation of the rules. The majority opinion of the District Court described the testimony in these words: “Law enforcement agencies, counsel and owners of licensed premises and investigators for the Department testified. The story that unfolded was a sordid one, primarily relating to sexual conduct between dancers and customers. . . 326 F. Supp. 348, 352. References to the transcript of the hearings submitted by the Department to the District Court indicated that in licensed establishments where “topless” and “bottomless” dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the Department had occurred. Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred. Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises. At the conclusion of the evidence, the Department promulgated the regulations here challenged, imposing standards as to the type of entertainment that could be presented in bars and nightclubs that it licensed. Those portions of the regulations found to be unconstitutional by the majority of the District Court prohibited the following kinds of conduct on licensed premises: (a) The performance of acts, or simulated acts, of “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law”; (b) The actual or simulated “touching, caressing or fondling on the breast, buttocks, anus or genitals”; (c) The actual or simulated ^'displaying of the pubic hair, anus, vulva or genitals”; (d) The permitting by a licensee of “any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus”; and, by a companion section, (e) The displaying of films or pictures depicting acts a live performance of which was prohibited by the regulations quoted above. Rules 143.3 and 143.4. Shortly before the effective date of the Department's regulations, appellees unsuccessfully sought discretionary review of them in both the State Court of Appeal and the Supreme Court of California. The Department then joined with appellees in requesting the three-judge District Court to decide the merits of appellees’ claims that the regulations were invalid under the Federal Constitution. The District Court majority upheld the appellees’ claim that the regulations in question unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments to the United States Constitution. It reasoned that the state regulations had to be justified either as a prohibition of obscenity in accordance with the Both line of decisions in this Court (Roth v. United States, 354 U. S. 476 (1957)), or else as a regulation of “conduct” having a communicative element in it under the standards laid down by this Court in United States v. O’Brien, 391 U. S. 367 (1968). Concluding that the regulations would bar some entertainment that could not be called obscene under the Roth line of cases, and that the governmental interest being furthered by the regulations did not meet the tests laid down in O’Brien, the court enjoined the enforcement of the regulations. 326 F. Supp. 348. We noted probable jurisdiction. 404 U. S. 999. The state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink. In Seagram & Sons v. Hostetter, 384 U. S. 35, 41 (1966), this Court said: "Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.’ ” While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. In Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 330 (1964), the Court reaffirmed that by reason of the Twenty-first Amendment “a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.” Still earlier, the Court stated in State Board v. Young’s Market Co., 299 U. S. 59, 64 (1936): “A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.” These decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. In Wisconsin v. Constantineau, 400 U. S. 433 (1971), the fundamental notice and hearing requirement of the Due Process Clause of the Fourteenth Amendment was held applicable to Wisconsin’s statute providing for the public posting of names of persons who had engaged in excessive drinking. But the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened by that enactment: “Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.” Hostetter v. Idlewild Liquor Corp., supra, at 332. A common element in the regulations struck down by the District Court appears to be the Department’s conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place in bars and cocktail lounges for which it has licensing responsibility. Based on the evidence from the hearings that it cited to the District Court, and mindful of the principle that in legislative rulemaking the agency may reason from the particular to the general, Assigned Car Cases, 274 U. S. 564, 583 (1927), we do not think it can be said that the Department’s conclusion in this respect was an irrational one. Appellees insist that the same results could have been accomplished by requiring that patrons already well on the way to intoxication be excluded from the licensed premises. But wide latitude as to choice of means to accomplish a permissible end must be accorded to the state agency that is itself the repository of the State’s power under the Twenty-first Amendment. Seagram & Sons v. Hostetter, supra, at 48. Nothing in the record before us or in common experience compels the conclusion that either self-discipline on the part of the customer or self-regulation on the part of the bartender could have been relied upon by the Department to secure compliance with such an alternative plan of regulation. The Department’s choice of a prophylactic solution instead of one that would have required its own personnel to judge individual instances of inebriation cannot, therefore, be deemed an unreasonable one under the holdings of our prior cases. Williamson v. Lee Optical Co., 348 U. S. 483, 487-488 (1955). We do not disagree with the District Court’s determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e. g., Sunshine Book Co. v. Summerfield, 355 U. S. 372 (1958), rev’g per curiam, 101 U. S. App. D. C. 358, 249 F. 2d 114 (1957). But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O’Brien, supra. Our prior cases have held that both motion pictures and theatrical productions are within the protection of the First and Fourteenth Amendments. In Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952), it was held that motion pictures are “included within the free speech and free press guaranty of the First and Fourteenth Amendments,” though not “necessarily subject to the precise rules governing any other particular method of expression.” Id., at 502-503. In Schacht v. United States, 398 U. S. 58, 63 (1970), the Court said with respect to theatrical productions: “An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance.” But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of “conduct” or “action,” Hughes v. Superior Court, 339 U. S. 460 (1950); Giboney v. Empire Storage Co., 336 U. S. 490 (1949). In O’Brien, supra, the Court suggested that the extent to which “conduct” was protected by the First Amendment depended on the presence of a “communicative element,” and stated: “We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech’ whenever the person engaging in the conduct intends thereby to express an idea.” 391 U. S., at 376. The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in ^the form of movies or live entertainment, “performances” ■ that partake more of gross sexuality than of com- • munication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink. Viewed in this light, we conceive the State’s authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater. The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution. The contrary holding of the District Court is therefore Reversed. Appellees in their brief here suggest that the regulations may exceed the authority conferred upon the Department as a matter of state law. As the District Court recognized, however, such a claim is not cognizable in the suit brought by these appellees under 42 ü. S. C. § 1983. In addition to the regulations held unconstitutional by the court below, appellees originally challenged Rule 143.2 prohibiting topless waitresses, Rule 143.3 (2) requiring certain entertainers to perforin on a stage at a distance away from customers, and Rule 143.5 prohibiting any entertainment that violated local ordinances. At oral argument in that court they withdrew their objections to these rules, conceding “that topless waitresses are not within the protection of the First Amendment; that local ordinances must be independently challenged depending upon their content; and that the requirement that certain entertainers must dance on a stage is not invalid.” 326 F. Supp. 348, 350-351. Mr. Justice Douglas in his dissenting opinion suggests that the District Court should have declined to adjudicate the merits of appellees’ contention until the appellants had given the “generalized provisions of the rules . . . particularized meaning.” Since parties may not confer jurisdiction either upon this Court or the District Court by stipulation, the request of both parties in this case that the court below adjudicate the merits of the constitutional claim does not foreclose our inquiry into the existence of an "actual controversy” within the meaning of 28 U. S. C. § 2201 and Art. Ill, § 2, cl. 1, of the Constitution. By pretrial stipulation, the appellees admitted they offered performances and depictions on their licensed premises that were proscribed by the challenged rules. Appellants stipulated they would take disciplinary action against the licenses of licensees violating such rules. In similar circumstances, this Court held that where a state commission had “plainly indicated” an intent to enforce an act that would affect the rights of the United States, there was a “present and concrete” controversy within the meaning of 28 U. S. C. § 2201 and of Art. III. California Comm’n v. United States, 355 U. S. 534, 539 (1958). The District Court therefore had jurisdiction of this action. Whether this Court should develop a nonjurisdictional limitation on actions for declaratory judgments to invalidate statutes on their face is an issue not properly before us. Cf. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341 (1936) (Brandéis, J., concurring). Certainly a number of our cases have permitted attacks on First Amendment grounds similar to those advanced by the appellees, see, e. g., Zwickler v. Koota, 389 U. S. 241 (1967); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Baggett v. Bullitt, 377 U. S. 360 (1964), and we are not inclined to reconsider the procedural holdings of those cases in the absence of a request by a party to do so. Similarly, States may validly limit the maimer in which the First Amendment freedoms are exercised, by forbidding sound trucks in residential neighborhoods, Kovacs v. Cooper, 336 U. S. 77 (1949), and may enforce a nondiscriminatory requirement that those who would parade on a public thoroughfare first obtain a permit. Cox v. New Hampshire, 312 U. S. 569 (1941). Other state limitations on the “time, manner and place” of the exercise of First Amendment rights have been sustained. See, e. g., Cameron v. Johnson, 390 U. S. 611 (1968), and Cox v. Louisiana, 379 U. S. 559 (1965). Because of the posture of this case, we have necessarily dealt with the regulations on their face, and have found them to be valid. The admonition contained in the Court’s opinion in Seagram & Sons v. Hostetter, 384 U. S. 35, 52 (1966), is equally in point here: “Although it is possible that specific future applications of [the statute] may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid.”	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
H. J. INC. et al. v. NORTHWESTERN BELL TELEPHONE CO. et al. No. 87-1252. Argued November 8, 1988 Decided June 26, 1989 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed an opin-' ion concurring in the judgment, in which Rehnquist, C. J., and O’Con-nor and Kennedy, JJ., joined, post, p. 251. Mark Reinhardt argued the cause for petitioners. With him on the briefs were Susan Bedor and John Cochrane. John D. French argued the cause for respondents. With him on the brief were John F. Beukema, James L. Volling, and Stephen T. Ref sell Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Acting Assistant Attorney General Richard, Deputy Solicitor General Bryson, Richard G. Taranto, Joel M. Gersho-witz, and Frank J. Marine; and for the States of Arizona et al. by Robert K. Corbin, Attorney General of Arizona, John K. Van de Kamp, Attorney General of California, John J. Kelly, Chief State’s Attorney of Connecticut, Jim Jones, Attorney General of Idaho, Frank J. Kelley, Attorney General of Michigan, W. Cary Edwards, Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, and Jean A. Benoy, Senior Deputy Attorney General, Dave Frohnmayer, Attorney General of Oregon, Jim Mat-tox, Attorney General of Texas, Kenneth 0. Eikenberry, Attorney General of Washington, Charlie Brown, Attorney General of West Virginia, Donald J. Hanaway, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg and Laurence Gold; for the American Institute of Certified Public Accountants by Philip A. Lacovara, Geoffrey F. Aronow, and Louis A. Craco; for the National Association of Manufacturers by Stephen M. Shapiro, Andrew L. Frey, Kenneth S. Getter, Mark I. Levy, Jan S. Amundson, and Quentin Riegel; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Vicki S. Marani. Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Stephen A. Bokat, Robin S. Conrad, and Lynn M. Smelkinson; and for Trial Lawyers for Public Justice by Robert M. Hausman. Justice Brennan delivered the opinion of the Court. The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968 (1982 ed. and Supp. V), imposes criminal and civil liability upon those who engage in certain “prohibited activities.” Each prohibited activity is defined in 18 U. S. C. § 1962 to include, as one necessary element, proof either of “a pattern of racketeering activity” or of “collection of an unlawful debt.” “Racketeering activity” is defined in RICO to mean “any act or threat involving” specified state-law crimes, any “act” indictable under various specified federal statutes, and certain federal “offenses,” 18 U. S. C. §1961(1) (1982 ed., Supp. V); but of the term “pattern” the statute says only that it “requires at least two acts of racketeering activity” within a 10-year period, 18 U. S. C. § 1961(5). We are called upon in this civil case to consider what conduct meets RICO’s pattern requirement. u-j RICO renders criminally and civilly liable “any person” who uses or invests income derived “from a pattern of racketeering activity” to acquire an interest in or to operate an enterprise engaged in interstate commerce, § 1962(a); who acquires or maintains an interest in or control of such an enterprise “through a pattern of racketeering activity,” § 1962(b); who, being employed by or associated with such an enterprise, conducts or participates in the conduct of its affairs “through a pattern of racketeering activity,” § 1962(c); or, finally, who conspires to violate the first three subsections of § 1962, § 1962(d). RICO provides for drastic remedies: conviction for a violation of RICO carries severe criminal penalties and forfeiture of illegal proceeds, 18 U. S. C. §1963 (1982 ed., Supp. V); and a person found in a private civil action to have violated RICO is liable for treble damages, costs, and attorney’s fees, 18 U. S. C. § 1964(c). Petitioners, customers of respondent Northwestern Bell Telephone Co., filed this putative class action in 1986 in the District Court for the District of Minnesota. Petitioners alleged violations of §§ 1962(a), (b), (c), and (d) by Northwestern Bell and the other respondents — some of the telephone company’s officers and employees, various members of the Minnesota Public Utilities Commission (MPUC), and other unnamed individuals and corporations — and sought an injunction and treble damages under RICO’s civil liability provisions, §§ 1964(a) and (c). The MPUC is the state body responsible for determining the rates that Northwestern Bell may charge. Petitioners’ five-count complaint alleged that between 1980 and 1986 Northwestern Bell sought to influence members of the MPUC in the performance of their duties — and in fact caused them to approve rates for the company in excess of a fair and reasonable amount — by making cash payments to commissioners, negotiating with them regarding future employment, and paying for parties and meals, for tickets to sporting events and the like, and for airline tickets. Based upon these factual allegations, petitioners alleged in their first count a pendent state-law claim, asserting that Northwestern Bell violated the Minnesota bribery statute, Minn. Stat. § 609.42 (1988), as well as state common law prohibiting bribery. They also raised four separate claims under § 1962 of RICO. Count II alleged that, in violation of § 1962(a), Northwestern Bell derived income from a pattern of racketeering activity involving predicate acts of bribery and used this income to engage in its business as an interstate “enterprise.” Count III claimed a violation of § 1962(b), in that, through this same pattern of racketeering activity, respondents acquired an interest in or control of the MPUC, which was also an interstate “enterprise.” In Count IV, petitioners asserted that respondents participated in the conduct and affairs of the MPUC through this pattern of racketeering activity, contrary to § 1962(c). Finally, Count V alleged that respondents conspired together to violate §§ 1962(a), (b), and (c), thereby contravening § 1962(d). The District Court granted respondents’ Federal Rule of Civil Procedure 12(b)(6) motion, dismissing the complaint for failure to state a claim upon which relief could be granted. 648 F. Supp. 419 (Minn. 1986). The court found that “[e]ach of the fraudulent acts alleged by [petitioners] was committed in furtherance of a single scheme to influence MPUC commissioners to the detriment of Northwestern Bell’s ratepayers.” Id., at 425. It held that dismissal was therefore mandated by the Court of Appeals for the Eighth Circuit’s decision in Superior Oil Co. v. Fulmer, 785 F. 2d 252 (1986), which the District Court interpreted as adopting an “extremely restrictive” test for a pattern of racketeering activity that required proof of “multiple illegal schemes.” 648 F. Supp., at 425. The Court of Appeals for the Eighth Circuit affirmed the dismissal of petitioners’ complaint, confirming that under Eighth Circuit precedent “[a] single fraudulent effort or scheme is insufficient” to establish a pattern of racketeering activity, 829 F. 2d 648, 650 (1987), and agreeing with the District Court that petitioners’ complaint alleged only a single scheme, ibid. Two members of the panel suggested in separate concurrences, however, that the Court of Appeals should reconsider its test for a RICO pattern. Id., at 650 (McMillian, J.); id., at 651 (J. Gibson, J.). Most Courts of Appeals have rejected the Eighth Circuit’s interpretation of RICO’s pattern concept to require an allegation and proof of multiple schemes, and we granted certiorari to resolve this conflict. 485 U. S. 958 (1988). We now reverse. II In Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479 (1985), this Court rejected a restrictive interpretation of § 1964(c) that would have made it a condition for maintaining a civil RICO action both that the defendant had already been convicted of a predicate racketeering act or of a RICO violation, and that plaintiff show a special racketeering injury. In doing so, we acknowledged concern in some quarters over civil RICO’s use against “legitimate” businesses, as well as “mobsters and organized criminals” — a concern that had frankly led to the Court of Appeals’ interpretation of § 1964(c) in Sedima, see id., at 499-500. But we suggested that RICO’s expansive uses “appear to be primarily the result of the breadth of the predicate offenses, in particular the inclusion of wire, mail, and securities fraud, and the failure of Congress and the courts to develop a meaningful concept of ‘pattern’” — both factors that apply to criminal as well as civil applications of the Act. Id., at 500; see also id., at 501-502 (Marshall, J., dissenting). Congress has done nothing in the interim further to illuminate RICO’s key requirement of a pattern of racketeering; and as the plethora of different views expressed by the Courts of Appeals since Sedima demonstrates, see n. 2, supra, developing a meaningful concept of “pattern” within the existing statutory framework has proved to be no easy task. It is, nevertheless, a task we must undertake in order to decide this case. Our guides in the endeavor must be the text of the statute and its legislative history. We find no support in those sources for the proposition, espoused by the Court of Appeals for the Eighth Circuit in this case, that predicate acts of racketeering may form a pattern only when they are part of separate illegal schemes. Nor can we agree with those courts that have suggested that a pattern is established merely by proving two predicate acts, see, e. g., United States v. Jennings, 842 F. 2d 159, 163 (CA6 1988), or with amici in this case who argue that the word “pattern” refers only to predicates that are indicative of a perpetrator involved in organized crime or its functional equivalent. In our view, Congress had a more natural and commonsense approach to RICO’s pattern element in mind, intending a more stringent requirement than proof simply of two predicates, but also envisioning a concept of sufficient breadth that it might encompass multiple predicates within a single scheme that were related and that amounted to, or threatened the likelihood of, continued criminal activity. A We begin, of course, with RICO’s text, in which Congress followed a “pattern [of] utilizing terms and concepts of breadth.” Russello v. United States, 464 U. S. 16, 21 (1983). As we remarked in Sedima, supra, at 496, n. 14, the section of the statute headed “definitions,” 18 U. S. C. § 1961 (1982 ed. and Supp. V), does not so much define a pattern of racketeering activity as state a minimum necessary condition for the existence of such a pattern. Unlike other provisions in § 1961 that tell us what various concepts used in the Act “mean,” 18 U. S. C. § 1961(5) says of the phrase “pattern of racketeering activity” only that it “requires at least two acts of racketeering activity, one of which occurred after [October 15, 1970,] and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” It thus places an outer limit on the concept of a pattern of racketeering activity that is broad indeed. Section 1961(5) does indicate that Congress envisioned circumstances in which no more than two predicates would be necessary to establish a pattern of racketeering — otherwise it would have drawn a narrower boundary to RICO liability, requiring proof of a greater number of predicates. But, at the same time, the statement that a pattern “requires at least” two predicates implies “that while two acts are necessary, they may not be sufficient.” Sedima, 473 U. S., at 496, n. 14; id., at 527 (Powell, J., dissenting). Section 1961 (5) concerns only the minimum number of predicates necessary to establish a pattern; and it assumes that there is something to a RICO pattern beyond simply the number of predicate acts involved. The legislative history bears out this interpretation, for the principal sponsor of the Senate bill expressly indicated that “proof of two acts of racketeering activity, without more, does not establish a pattern.” 116 Cong. Rec. 18940 (1970) (statement of Sen. McClellan). Section § 1961(5) does not identify, though, these additional prerequisites for establishing the existence of a RICO pattern. In addition to § 1961(5), there is the key phrase “pattern of racketeering activity” itself, from § 1962, and we must “start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U. S. 1, 9 (1962). In normal usage, the word “pattern” here would be taken to require more than just a multiplicity of racketeering predicates. A “pattern” is an “arrangement or order of things or activity,” 11 Oxford English Dictionary 357 (2d ed. 1989), and the mere fact that there are a number of predicates is no guarantee that they fall into any arrangement or order. It is not the number of predicates but the relationship that they bear to each other or to some external organizing principle that renders them “ordered” or “arranged.” The text of RICO conspicuously fails anywhere to identify, however, forms of relationship or external principles to be used in determining whether racketeering activity falls into a pattern for purposes of the Act. It is reasonable to infer, from this absence of any textual identification of sorts of pattern that would satisfy § 1962’s requirement, in combination with the very relaxed limits to the pattern concept fixed in § 1961(5), that Congress intended to take a flexible approach, and envisaged that a pattern might be demonstrated by reference to a range of different ordering principles or relationships between predicates, within the expansive bounds set. For any more specific guidance as to the meaning of “pattern,” we must look past the text to RICO’s legislative history, as we have done in prior cases construing the Act. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S., at 486-490 (majority opinion); id., at, 510-519 (Marshall, J., dissenting); id., at, 524-527 (Powell, J., dissenting); Russello v. United States, supra, at 26-29; United States v. Turkette, 452 U. S. 576, 586-587, 589-593 (1981). The legislative history, which we discussed in Sedima, supra, at 496, n. 14, shows that Congress indeed had a fairly flexible concept of a pattern in mind. A pattern is not formed by “sporadic activity,” S. Rep. No. 91-617, p. 158 (1969), and a person cannot “be subjected to the sanctions of title IX simply for committing two widely separated and isolated criminal offenses,” 116 Cong. Rec. 18940 (1970) (Sen. McClellan). Instead, “[t]he term ‘pattern’ itself requires the showing of a relationship” between the predicates, ibid., and of “ ‘the threat of continuing activity,’ ” ibid., quoting S. Rep. No. 91-617, supra, at 158. “It is this factor of continuity plus relationship which combines to produce a pattern.” 116 Cong. Rec., at 18940 (emphasis added). RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity. B For analytic purposes these two constituents of RICO’s pattern requirement must be stated separately, though in practice their proof will often overlap. The element of relatedness is the easier to define, for we may take guidance from a provision elsewhere in the Organized Crime Control Act of 1970 (OCCA), Pub. L. 91-452, 84 Stat. 922, of which RICO formed Title IX. OCCA included as Title X the Dangerous Special Offender Sentencing Act, 18 U. S. C. §3575 et seq. (now partially repealed). Title X provided for enhanced sentences where, among other things, the defendant had committed a prior felony as part of a pattern of criminal conduct or in furtherance of a conspiracy to engage in a pattern of criminal conduct. As we noted in Sedima, supra, at 496, n. 14, Congress defined Title X’s pattern requirement solely in terms of the relationship of the defendant’s criminal acts one to another: “[CJriminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” § 3575(e). We have no reason to suppose that Congress had in mind for RICO’s pattern of racketeering component any more constrained a notion of the relationships between predicates that would suffice. RICO’s legislative history tells us, however, that the relatedness of racketeering activities is not alone enough to satisfy § 1962’s pattern element. To establish a RICO pattern it must also be shown that the predicates themselves amount to, or that they otherwise constitute a threat of, con-tin idng racketeering activity. As to this continuity requirement, § 3575(e) is of no assistance. It is this aspect of RICO’s pattern element that has spawned the “multiple scheme” test adopted by some lower courts, including the Court of Appeals in this case. See 829 F. 2d, at 650 (“In order to demonstrate the necessary continuity appellants must allege that Northwestern Bell ‘had engaged in similar endeavors in the past or that [it was] engaged in other criminal activities.’... A single fraudulent effort or scheme is insufficient”). But although proof that a RICO defendant has been involved in multiple criminal schemes would certainly be highly relevant to the inquiry into the continuity of the defendant’s racketeering activity, it is implausible to suppose that Congress thought continuity might be shown only by proof of multiple schemes. The Eighth Circuit’s test brings a rigidity to the available methods of proving a pattern that simply is not present in the idea of “continuity” itself; and it does so, moreover, by introducing a concept — the “scheme” — that appears nowhere in the language or legislative history of the Act. We adopt a less inflexible approach that seems to us to derive from a commonsense, everyday understanding of RICO’s language and Congress’ gloss on it. What a plaintiff or prosecutor must prove is continuity of racketeering activity, or its threat, simpliciter. This may be done in a variety of ways, thus making it difficult to formulate in the abstract any general test for continuity. We can, however, begin to delineate the requirement. “Continuity” is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. See Barticheck v. Fidelity Union Bank/First National State, 832 F. 2d 36, 39 (CA3 1987). It is, in either case, centrally a temporal concept — and particularly so in the RICO context, where what must be continuous, RICO’s predicate acts or offenses, and the relationship these predicates must bear one to another, are distinct, requirements. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated. See S. Rep. No. 91-617, at 158. Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case. Without making any claim to cover the field of possibilities — preferring to deal with this issue in the context of concrete factual situations presented for decision — we offer some examples of how this element might be satisfied. A RICO pattern may surely be established if the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit. Suppose a hoodlum were to sell “insurance” to a neighborhood’s storekeepers to cover them against breakage of their windows, telling his victims he would be reappearing each month to collect the “premium” that would continue their “coverage.” Though the number of related predicates involved may be small and they may occur close together in time, the racketeering acts themselves include a specific threat of repetition extending indefinitely into the future, and thus supply the requisite threat of continuity. In other cases, the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity’s regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes. Such associations include, but extend well beyond, those traditionally grouped under the phrase “organized crime.” The continuity requirement is likewise satisfied where it is shown that the predicates are a regular way of conducting defendant’s ongoing legitimate business (in the sense that it is not a business that exists for criminal purposes), or of conducting or participating in an ongoing and legitimate RICO “enterprise.” The limits of the relationship and continuity concepts that combine to define a RICO pattern, and the precise methods by which relatedness and continuity or its threat may be proved, cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a “pattern of racketeering activity” exists. The development of these concepts must await future cases, absent a decision by Congress to revisit RICO to provide clearer guidance as to the Act’s intended scope. Ill Various amici urge that RICO’s pattern element should be interpreted more narrowly than as requiring relationship and continuity in the senses outlined above, so that a defendant’s racketeering activities form a pattern only if they are characteristic either of organized crime in the traditional sense, or of an organized-crime-type perpetrator, that is, of an association dedicated to the repeated commission of criminal offenses. Like the Court of Appeals’ multiple scheme rule, however, the argument for reading an organized crime limitation into RICO’s patterh concept, whatever the merits and demerits of such a limitation as an initial legislative matter, finds no support in the Act’s text, and is at odds with the tenor of its legislative history. One evident textual problem with the suggestion that predicates form a RICO pattern only if they are indicative of an organized crime perpetrator — in either a traditional or functional sense — is that it would seem to require proof that the racketeering acts were the work of an association or group, rather than of an individual acting alone. RICO’s language supplies no grounds to believe that Congress meant to impose such a limit on the Act’s scope. A second indication from the text that Congress intended no organized crime limitation is that no such restriction is explicitly stated. In those titles of OCCA where Congress did intend to limit the new law’s application to the context of organized crime, it said so. Thus Title V, authorizing the witness protection program, stated that the Attorney General may provide for the security of witnesses “in legal proceedings against any person alleged to have participated in an organized criminal activity.” 84 Stat. 933, note preceding 18 U. S. C. §3481 (since repealed). And Title VI permitted the deposition of a witness to preserve testimony for a legal proceeding, upon motion by the Attorney General certifying that “the legal proceeding is against a person who is believed to have participated in an organized criminal activity.” 18 U. S. C. § 3503(a). Moreover, Congress’ approach in RICO can be contrasted with its decision to enact explicit limitations to organized crime in other statutes. E. g., Omnibus Crime Control and Safe Streets Act of 1968, § 601(b), Pub. L. 90-351, 82 Stat. 209 (defining “organized crime” as “the unlawful activities of the members of a highly organized, disciplined association engaged in supplying illegal goods and services, including but not limited to gambling, prostitution, loan sharking, narcotics, labor racketeering, and other unlawful activities of members of such organizations”). Congress’ decision not explicitly to limit RICO’s broad terms strongly implies that Congress had in mind no such narrow and fixed idea of what constitutes a pattern as that suggested by amici here. It is argued, nonetheless, that Congress’ purpose in enacting RICO, as revealed in the Act’s title, in OCCA’s preamble, 84 Stat. 923 (Congress seeking “the eradication of organized crime in the United States”), and in the legislative history, was to combat organized crime; and that RICO’s broad language should be read narrowly so that the Act’s scope is coextensive with this purpose. We cannot accept this argument for a narrowing construction of the Act’s expansive terms. To be sure, Congress focused on, and the examples used in the debates and reports to illustrate the Act’s operation concern, the predations of mobsters. Organized crime was without a doubt Congress’ major target, as we have recognized elsewhere. See Russello, 464 U. S., at 26; Turkette, 452 U. S., at 591. But the definition of a “pattern of criminal conduct” in Title X of OCCA in terms only of the relationship between criminal acts, see supra, at 240, shows that Congress was quite capable of conceiving of “pattern” as a flexible concept not dependent on tying predicates to the major objective of the law, which for Title X as for Title IX was the eradication of organized crime. See 84 Stat. 923. Title X’s definition of “pattern” should thus create a good deal of skepticism about any claim that, despite the capacious language it used, Congress must have intended the RICO pattern element to pick out only racketeering activities with an organized crime nexus. And, indeed, the legislative history shows that Congress knew what it was doing when it adopted commodious language capable of extending beyond organized crime. Opponents criticized OCCA precisely because it failed to limit the statute’s reach to organized crime. See, e. g., S. Rep. No. 91-617, at 215 (Sens. Hart and Kennedy complaining that the OCCA bill “goes beyond organized criminal activity”). In response, the statute’s sponsors made evident that the omission of this limit was no accident, but a reflection of OCCA’s intended breadth. Senator McClellan was most plain in this respect: “The danger posed by organized crime-type offenses to our society has, of course, provided the occasion for our examination of the working of our system of criminal justice. But should it follow... that any proposals for action stemming from that examination be limited to organized crime? “[T]his line of analysis... is seriously defective in several regards. Initially, it confuses the occasion for reexamining an aspect of our system of criminal justice with the proper scope of any new principle or lesson derived from that reexamination. “In addition, the objection confuses the role of the Congress with the role of a court. Out of a proper sense of their limited lawmaking function, courts ought to confine their judgments to the facts of the cases before them. But the Congress in fulfilling its proper legislative role must examine not only individual instances, but whole problems. In that connection, it has a duty not to engage in piecemeal legislation. Whatever the limited occasion for the identification of a problem, the Congress has the duty of enacting a principled solution to the entire problem. Comprehensive solutions to identified problems must be translated into well integrated legislative programs. “The objection, moreover, has practical as well as theoretical defects. Even as to the titles of [the OCCA bill] needed primarily in organized crime cases, there are very real limits on the degree to which such provisions can be strictly confined to organized crime cases.... On the other hand, each title... which is justified primarily in organized crime prosecutions has been confined to such cases to the maximum degree possible, while preserving the ability to administer the act and its effectiveness as a law enforcement tool.” 116 Cong. Rec. 18913-18914 (1970). Representative Poff, another sponsor of the legislation, also answered critics who complained that a definition of “organized crime” was needed: “It is true that there is no organized crime definition in many parts of the bill. This is, in part, because it is probably impossible precisely and definitively to define organized crime. But if it were possible, I ask my friend, would he not be the first to object that in criminal law we establish procedures which would be applicable only to a certain type of defendant?” Id., at 35204. See also id., at 35344 (Rep. Poff) (“organized crime” simply “a shorthand method of referring to a large and varying group of individual criminal offenses committed in diverse circumstances,” not a precise concept). The thrust of these	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
UNEXCELLED CHEMICAL CORP. v. UNITED STATES. No. 293. Argued January 9, 1953. Decided March 9, 1953. George Morris Fay argued the cause for petitioner. With him on the brief were John P. Burke and Edward L. Carey for petitioner. James R. Browning argued the cause for the United States. With him on the brief were Solicitor General Cummings, Assistant Attorney General Baldridge, Paul A. Sweeney and Benjamin Forman. Mr. Justice Douglas delivered the opinion of the Court. This is an action brought by the United States to recover liquidated damages under the Walsh-Healey Act. 49 Stat. 2036, as amended, 41 U. S. C. § 35 et seq. That Act provides that a contractor furnishing the Government materials, supplies, etc., in an amount exceeding $10,000 must meet specified labor standards. Thus, child labor and convict labor are prohibited, § 1 (d), under the sanction of $10 a day for each day any minor or convict is employed plus any underpayment of wages, payable as liquidated damages. § 2. These sums of money owing the United States may be withheld from amounts due on the contracts or may be recovered in suits brought in the name of the United States by the Attorney General. § 2. The Secretary of Labor administers the Act (see § 4; Endicott Johnson Corp. v. Perkins, 317 U. S. 501, 507), making investigations and findings (§4) and issuing complaints and holding hearings. § 5. On April 17,1947, the Secretary of Labor issued a complaint charging' petitioner with having knowingly employed child labor during the years 1942-1945 in violation of the Act. On February 25, 1949, a Hearing Examiner made a decision in which he found that petitioner had knowingly employed child labor in violation of the Act and was indebted to the United States in the sum of $15,600 as liquidated damages. Under the Rules of Practice of the Department of Labor that decision became final at the end of the twenty-day period within which petitioner had an opportunity to petition the Chief Hearing Examiner for review. Nearly a year later — January 27, 1950 — this action was brought. The answer tendered as a defense the two-year statute of limitations contained in § 6 of the Portal-to-Portal Act of 1947, 61 Stat. 84, 87, 29 U. S. C. (Supp. V) § 255. Both parties moved for summary judgment. The District Court granted petitioner’s motion, holding that the cause of action arose when petitioner violated the statute and that the two-year statute of limitations began to run from the date. 99 F. Supp. 155. The Court of Appeals reversed, 196 F. 2d 264, holding that actions brought by the United States to enforce the child labor provisions of the Walsh-Healey Act are not barred by the two-year limitation period of § 6 of the Portal-to-Portal Act. The case is here on certiorari because of a conflict between that decision and Lance, Inc. v. United States, 190 F. 2d 204, and United States v. Lovknit Mfg. Co., 189 F. 2d 454, from the Courts of Appeals of the Fourth and Fifth Circuits respectively. Section 6 of the Portal-to-Portal Act provides a two-year statute of limitations for any action commenced on or after the date of the Act “to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act.” Section 6 also provides that “every such action shall be forever barred unless commenced within two years after the cause of action accrued.” The Portal-to-Portal Act was enacted to remedy what were deemed to be some harsh results of our decision in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, which held that time necessarily spent by employees walking to work on the employer’s premises and in preliminary activities after arriving at their places of work was working time within the scope of the Fair Labor Standards Act. 52 Stat. 1060, 63 Stat. 910, 29 U. S. C. § 201 et seq. The suits instituted by employees, the amounts claimed, and their threatened impact on business caused Congress to act. See H. R. Rep. No. 71, 80th Cong., 1st Sess.; S. Rep. No. 48, 80th Cong., 1st Sess. The consequences feared from Anderson v. Mt. Clemens Pottery Co., supra, were summarized in § 1 (a) of the Portal-to-Portal Act. None of these referred to the liquidated damage provisions of the Walsh-Healey Act. None in fact referred to its child labor provisions. That is the start of the argument made by respondent and adopted by the Court of Appeals to the effect that Congress in the Portal-to-Portal Act had no intention to legislate with respect to the child labor provisions of the Walsh-Healey Act but had in mind only possible suits which employees might bring for unpaid minimum wages and overtime. We do not stop to lay out the entire legislative history of the Portal-to-Portal Act. For the words Congress used in § 6 are too precise for extended argument. Three causes of action are covered — claims for “unpaid minimum wages,” claims for “unpaid overtime compensation,” and claims for “liquidated damages” under three Acts, including the Walsh-Healey Act. The only “liquidated damages” collectible under the Walsh-Healey Act are collectible by the United States. That marks a difference between that Act and the Fair Labor Standards Act. For, under the latter, employees may bring suits for double the amount of unpaid wages, plus costs and attorneys’ fees. 29 U. S. C. § 216 (b). That is doubtless why § 1 (a) of the Portal-to-Portal Act, after summarizing the great burden on employers of the pending employee claims, states that “all of the results which have arisen or may arise under the Fair Labor Standards Act of 1938 . . . may (except as to liability for liquidated damages) arise with respect to the Walsh-Healey” Act and that “it is, therefore, in the national public interest . . . that this Act shall apply to the Walsh-Healey Act . . . .” That statement does no more than emphasize the difference of the problem of liquidated damages under the two Acts. The fact remains that the Portal-to-Portal Act treats claims for “liquidated damages” under the Walsh-Healey Act precisely the same as it does claims for “liquidated damages” under the Fair Labor Standards Act, even though the former are enforced exclusively by the Government, the latter by the employees. Perhaps that does not make for an harmonious whole. Perhaps Congress misconceived the problems under the Walsh-Healey Act. However that may be, the present cause of action seems to be precisely described by and expressly included in the words “liquidated damages under the . . . Walsh-Healey Act.” If this cause of action is not covered by that language, apparently none other is. It is not for us then to try to avoid the conclusion that Congress did not mean what it said. Arguments of policy are relevant when for example a statute has an hiatus that must be filled or there are ambiguities in the legislative language that must be resolved. But when Congress, though perhaps mistakenly or inadvertently, has used language which plainly brings a subject matter into a statute, its word is final — save for questions of constitutional power which have not even been intimated here. Respondent argues that even if this cause of action is subject to the two-year statute of limitations contained in § 6 of the Portal-to-Portal Act; the present suit was timely. The contention is that the cause of action accrues, and the two-year period begins to run, only after it is administratively determined by the Department of Labor that the contractor is liable to the United States for liquidated damages. If that contention is sound, the judgment below must stand, as this suit was begun less than two years after the conclusion of the administrative proceedings. We take the opposing view. We conclude that “the cause of action accrued,” within the meaning of § 6 of the Portal-to-Portal Act, when the minors were employed. That was the violation of the Walsh-Healey Act, giving rise to the liability for liquidated damages. It is true that the administration of the Act is entrusted in large measure to the Secretary of Labor. See Endicott Johnson Corp. v. Perkins, supra. He has broad investigatory and hearing powers. §§ 4, 5. He has authority to proscribe those who have violated the Act, barring them from government contracts for three years. § 3. Moneys withheld as liquidated damages are placed in a special fund and paid on order of the Secretary of Labor to the employees. § 2. These powers of the Secretary, important as they are in determining the relation between the courts and the administrative branch of government (Endicott Johnson Corp. v. Perkins, supra), are irrelevant to the narrow question of law that is presented. A cause of action is created when there is a breach of duty owed the plaintiff. It is that breach of duty, not its discovery, that normally is controlling. Section 2 of the Walsh-Healey Act provides that the Attorney General may bring suit to recover moneys owed the United States. The fact that due deference to the administrative process should make a court hold its hand until the administrative proceedings before the Secretary of Labor have been completed (Far East Conference v. United States, 342 U. S. 570; Thompson v. Texas Mexican R. Co., 328 U. S. 134; General American Tank Corp. v. El Dorado Terminal Co., 308 U. S. 422; United States v. Morgan, 307 U. S. 183) is a matter of judicial administration and of no relevancy here. The statutory liability accrued when the minors were employed. It was from that date that the period of limitations began to run. This construction, it is said, will prejudice the power of the United States to safeguard the public interest. But if there is prejudice it is the result of the Portal-to-Portal Act which Congress, having made, can refashion. There is the final argument that the action was, in any event, commenced when the administrative proceedings were initiated. Section 7 of the Portal-to-Portal Act provides that “an action is commenced for the purposes of section 6 ... on the date when the complaint is filed.” It is argued that the issuance of a formal complaint in the administrative proceedings (the customary procedure in Walsh-Healey cases) is the commencement of an action in the statutory sense. Congress, however, when it wrote § 7, was addressing itself to lawsuits in the conventional sense. Commencement of an action by the filing of a complaint has too familiar a history and the purpose of §§ 6 and 7 was too obvious for us to assume that Congress did not mean to use the words in their ordinary sense. Reversed. “SectioN 1. (a) The Congress hereby finds that the Fair Labor Standards Act of 1938, as amended, has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers with the results that, if said Act as so interpreted or claims arising under such interpretations were permitted to stand, (1) the payment of such liabilities would bring about financial ruin of many employers and seriously impair the capital resources of many others, thereby resulting in the reduction of industrial operations, halting of expansion and development, curtailing employment, and the earning power of employees; (2) the credit of many employers would be seriously impaired; (3) there would be created both an extended and continuous uncertainty on the part of industry, both employer and employee, as to the financial condition of productive establishments and a gross inequality of competitive conditions between employers and between industries; (4) employees would receive windfall payments, including liquidated damages, of sums for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay; (5) there would occur the promotion of increasing demands for payment to employees for engaging in activities no compensation for which had been contemplated by either the employer or employee at the time they were engaged in; (6) voluntary collective bargaining would be interfered with and industrial disputes between employees and employers and between employees and employees would be created; (7) the courts of the country would be burdened with excessive and needless litigation and champertous practices would be encouraged; (8) the Public Treasury would be deprived of large sums of revenues and public finances would be seriously deranged by claims against the Public Treasury for refunds of taxes already paid; (9) the cost to the Government of goods and services heretofore and hereafter purchased by its various departments and agencies would be unreasonably increased and the Public Treasury would be seriously affected by consequent increased cost of war contracts; and (10) serious and adverse effects upon the revenues of Federal, State, and local governments would occur.” See for example H. R. Rep. No. 71, supra, p. 5: “The Walsh-Healey Act also concerns itself in its field with minimum wages and overtime compensation. The Bacon-Davis Act has provisions relating to minimum wages and other conditions of employment. These two acts are therefore affected by the Mount Clemens decision. The situation described herein as to the Fair Labor Standards Act applies to that existing under the Walsh-Healey Act and the Bacon-Davis Act. The same necessity exists there for remedial legislation.” We do not reach the question whether employees have standing to sue under the Walsh-Healey Act. No provision, however, is made for their recovery of liquidated damages. The following provision relates to their rights: “All sums withheld or recovered as deductions, rebates, refunds, or underpayments of wages shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employees who have been paid less than minimum rates of pay as set forth in such contracts and on whose account such sums were withheld or recovered: Provided, That no claims by employees for such payments shall be entertained unless made within one year from the date of actual notice to the contractor of the withholding or recovery of such sums by the United States of America.” § 2. Section 2 provides in pertinent part: “Any sums of money due to the United States of America by reason of any violation of any of the representations and stipulations of said contract set forth in section 1 hereof may be withheld from any amounts due on any such contracts or may be recovered in suits brought in the name of the United States of America by the Attorney General thereof.”	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 70 ]	sc_adminaction
FEDERAL COMMUNICATIONS COMMISSION et al. v. AT&T INC. et al. No. 09-1279. Argued January 19, 2011 Decided March 1, 2011 Anthony A Yang argued the cause for petitioners. With him on the briefs were Acting Solicitor General Katyal, Assistant Attorney General West, Deputy Solicitor General Kneedler, Leonard Schaitman, Henry C. Whitaker, Austin C. Schlick, Daniel M. Armstrong, and Michael A. Krasnow. Mary C. Albert, Adina H. Rosenbaum, and Michael H. Page filed briefs for respondent CompTel in support of petitioners. Geoffrey M. Klineberg argued the cause for respondent AT&T Inc. With him on the brief was Brendan J. Crimmins. Briefs of amici curiae urging reversal were filed for the Collaboration on Government Secrecy by Daniel J. Metcalfe; for the Constitutional Accountability Center by Douglas T. Kendall, Elizabeth B. Wydra, and David H. Gans; for Free Press by Aparna Sridhar and Coriell S. Wright; for the Project on Government Oversight et al. by Neal Goldfarb, Sandra Chance, and Cornish Hitchcock; and for the Reporters Committee for Freedom of the Press et al. by Lucy A. Dalglish, Kevin M. Goldberg, Jonathan Bloom, David Ardia, David M. Giles, Peter Scheer, Mickey H. Osterreicher, René P. Milam, George Freeman, Bruce W. Sanford, Bruce D. Brown, Laurie A. Babinski, David S. Bralow, and Eric N. Lieberman. Briefs of amici curiae urging affirmance were filed for the Business Roundtable by Alan Charles Raul and Gordon D. Todd; for the Chamber of Commerce of the United States of America by Patricia A. Millett and Robin S. Conrad; and for the National Association of Manufacturers by Ethan P. Schulman, Clifton S. Elgarten, Jennifer N. Waters, and Quentin Riegel. Briefs of amici curiae were filed for Citizens for Responsibility and Ethics in Washington et al. by Anne L. Weismann and David L. Sobel; and for the Electronic Privacy Information Center et al. by Marc Rotenberg. Chief Justice Roberts delivered the opinion of the Court. The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, unless they fall within one of several statutory exemptions. One of those exemptions covers law enforcement records, the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U. S. C. § 552(b)(7)(C). The question presented is whether corporations have “personal privacy” for the purposes of this exemption. I The Freedom of Information Act request at issue in this case relates to an investigation of respondent AT&T Inc., conducted by the Federal Communications Commission. AT&T participated in an FCC-administered program — the E-Rate (or Education-Rate) program — that was created to enhance access for schools and libraries to advanced telecommunications and information services. In August 2004, AT&T voluntarily reported to the FCC that it might have overcharged the Government for services it provided as part of the program. The FCC’s Enforcement Bureau launched an investigation. As part of that investigation, AT&T provided the Bureau various documents, including responses to interrogatories, invoices, e-mails with pricing and billing information, names and job descriptions of employees involved, and AT&T’s assessment of whether those employees had violated the company’s code of conduct. 582 F. 3d 490, 492-493 (CA3 2009). The FCC and AT&T resolved the matter in December 2004 through a consent decree in which AT&T — without conceding liability — agreed to pay the Government $500,000 and to institute a plan to ensure compliance with the program. See 19 FCC Rcd. 24014, 24016-24019. Several months later, CompTel — “a trade association representing some of AT&T’s competitors” — submitted a FOIA request seeking “ '[a]ll pleadings and correspondence’ ” in the Bureau’s file on the AT&T investigation. 582 F. 3d, at 493. AT&T opposed CompTel’s request, and the Bureau issued a letter-ruling in response. The Bureau concluded that some of the information AT&T had provided (including cost and pricing data, billing-related information, and identifying information about staff, contractors, and customer representatives) should be protected from disclosure under FOIA Exemption 4, which relates to “trade secrets and commercial or financial information,” 5 U. S. C. § 552(b)(4). App. to Pet. for Cert. 40a-41a. The Bureau also decided to withhold other information under FOIA Exemption 7(C). Exemption 7(C) exempts “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C). The Bureau concluded that “individuals identified in [AT&T’s] submissions” have “privacy rights” that warrant protection under Exemption 7(C). Id., at 43a. The Bureau did not, however, apply that exemption to the corporation itself, reasoning that “businesses do not possess 'personal privacy’ interests as required” by the exemption. Id., at 42a-43a. On review the FCC agreed with the Bureau. The Commission found AT&T’s position that it is “a 'private corporate citizen’ with personal privacy rights that should be protected from disclosure that would 'embarrass’ it . . . within the meaning of Exemption 7(C) ... at odds with established [FCC] and judicial precedent.” 23 FCC Rcd. 13704, 13707 (2008). It therefore concluded that “Exemption 7(C) has no applicability to corporations such as [AT&T].” Id., at 13710. AT&T sought review in the Court of Appeals for the Third Circuit, and that court rejected the FCC’s reasoning. Noting that Congress had defined the word “person” to include corporations as well as individuals, 5 U. S. C. § 551(2), the court held that Exemption 7(C) extends to the “personal privacy” of corporations, since “the root from which the statutory word [personal]... is derived” is the defined term “person.” 582 F. 3d, at 497. As the court explained, “[i]t would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term.” Ibid. The court accordingly ruled “that FOIA’s text unambiguously indicates that a corporation may have a ‘personal privacy’ interest within the meaning of Exemption 7(C).” Id., at 498. The FCC petitioned this Court for review of the Third Circuit’s decision, and CompTel filed as a respondent supporting petitioners. We granted certiorari, 561 U. S. 1057 (2010), and now reverse. II Like the Court of Appeals below, AT&T relies on the argument that the word “personal” in Exemption 7(C) incorporates the statutory definition of the word “person.” See Brief for Respondent AT&T 8-9, 14-15 (AT&T Brief); 582 F. 3d, at 497. The Administrative Procedure Act defines “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U. S. C. § 551(2). Because that definition applies here, the argument goes, “personal” must mean relating to those “person[s]”: namely, corporations and other entities as well as individuals. This reading, we are told, is dictated by a “basic principle of grammar and usage.” AT&T Brief 8; see id., at 14-15; see also 582 F. 3d, at 497 (citing Delaware River Stevedores v. DiFidelto, 440 F. 3d 615, 623 (CA3 2006) (Fisher, J., concurring), for “[t]he grammatical imperativ[e]” that “a statute which defines a noun has thereby defined the adjectival form of that noun”). According to AT&T, “[b]y expressly defining the noun ‘person’ to include corporations, Congress necessarily defined the adjective form of that noun — ‘personal’—also to include corporations.” AT&T Brief 14 (emphasis added). We disagree. Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530. Even in cases such as these there may well be a link between the noun and the adjective. “Cranky” describes a person with a “wayward” or “capricious” temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a “crank” takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC’s argument that “personal” does not, in fact, derive from the English word “person,” but instead developed along its own etymological path, Reply Brief for Petitioners 6, simply highlights the shortcomings of AT&T’s proposed rule. “Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. 133, 138 (2010). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them. Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, “that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the opposite of business related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view. Dictionaries also suggest that “personal” does not ordinarily relate to artificial “persons” such as corporations. See, e. g., 7 OED 726 (1933) (“[1] [o]f, pertaining to . . . the individual person or self,” “individual; private; one’s own”; “[3] [o]f or pertaining to one’s person, body, or figure”; “[5] [o]f, pertaining to, or characteristic of a person or self-conscious being, as opposed to a thing or abstraction”); 11 OED 599-600 (2d ed. 1989) (same); Webster’s Third New International Dictionary 1686 (1976) (“[3] relating to the person or body”; “[4] relating to an individual, his character, conduct, motives, or private affairs”; “[5] relating to or characteristic of human beings as distinct from things”); ibid. (2002) (same). AT&T dismisses these definitions, correctly noting that “personal” — at its most basic level — simply means “[o]f or pertaining to a particular person.” Webster’s New International Dictionary 1828 (2d ed. 1954). The company acknowledges that “in non-legal usage, where a ‘person’ is a human being, it is entirely unsurprising that the word ‘personal’ is used to refer to human beings.” AT&T Brief 8. But in a watered-down version of the “grammatical imperative” argument, AT&T contends that “person” — in common legal usage — is understood to include a corporation. “Personal” in the same context therefore can and should have the same scope, especially here in light of the statutory definition. See id., at 8-9, 16. The construction of statutory language often turns on context, see, e. g., Johnson, supra, at 139, which certainly may include the definitions of related words. But here the context to which AT&T points does not dissuade us from the ordinary meaning of “personal.” We have no doubt that “person,” in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear. 1 U. S. C. § 1 (defining “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”). But AT&T’s effort to ascribe a corresponding legal meaning to “personal” again elides the difference between “person” and “personal.” When it comes to the word “personal,” there is little support for the notion that it denotes corporations, even in the legal context. AT&T notes that corporations are “protected by the doctrine of ‘personal’ jurisdiction,” AT&T Brief 19, but that phrase refers to jurisdiction in personam, as opposed to in rem, not the jurisdiction “of a person.” The only other example AT&T cites is an 1896 case that referred to the “ ‘personal privilege’ ” of a corporation. Ibid. (quoting Mercantile Bank v. Tennessee ex rel. Memphis, 161 U. S. 161, 171 (1896); emphasis deleted). These examples fall far short of establishing that “personal” here has a legal meaning apart from its ordinary one, even if “person” does. Cf. Merck & Co. v. Reynolds, 559 U. S. 633, 644-646 (2010) (noting that “‘discovery’ is often used as a term of art in connection with the ‘discovery rule’ ” and describing the judicial and legislative codification of that meaning over time); Molzof v. United States, 502 U. S. 301, 306 (1992) (“‘Punitive damages’ is a legal term of art that has a widely accepted common-law meaning; . . . this Court’s decisions make clear that the concept... has a long pedigree in the law”). Regardless of whether “personal” can carry a special meaning in legal usage, “when interpreting a statute ... we construe language ... in light of the terms surrounding it.” Leocal v. Ashcroft, 543 U. S. 1, 9 (2004). Exemption 7(C) refers not just to the word “personal,” but to the term “personal privacy.” § 552(b)(7)(C); cf. Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers, 523 U. S. 653, 657 (1998) (“It is not the meaning of ‘for’ we are seeking here, but the meaning of ‘[sjuits for violation of contracts’”). AT&T’s effort to attribute a special legal meaning to the word “personal” in this particular context is wholly unpersuasive. AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “person,” or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns — not the sort usually associated with an entity like, say, AT&T. Despite its contention that “[ejommon legal usage” of the word “person” supports its reading of the term “personal privacy,” AT&T Brief 9, 13,18, AT&T does not cite a single instance in which this Court or any other (aside from the Court of Appeals below) has expressly referred to a corporation’s “personal privacy.” Nor does it identify any other statute that does so. See Tr. of Oral Arg. 26. On the contrary, treatises in print around the time that Congress drafted the exemptions at hand reflect the understanding that the specific concept of “personal privacy,” at least as a matter of common law, did not apply to corporations. See Restatement (Second) of Torts §6521, Comment c (1976) (“A corporation, partnership or unincorporated association has no personal right of privacy”); W. Prosser, Law of Torts §97, pp. 641-642 (2d ed. 1955) (“A corporation or a partnership as such can have no personal privacy, although it seems clear that it may have an exclusive right to its name and its business prestige” (footnotes omitted)); cf. id., § 112, at 843-844 (3d ed. 1964) (“It seems to be generally agreed that the right of privacy is one pertaining only to individuals, and that a corporation or a partnership cannot claim it as such” (footnotes omitted)); id., §117, at 815 (4th ed. 1971) (same). AT&T contends that this Court has recognized “privacy” interests of corporations in the Fourth Amendment and double jeopardy contexts, and that the term should be similarly construed here. See AT&T Brief 20-25. But this case does not call upon us to pass on the scope of a corporation’s “privacy” interests as a matter of constitutional or common law. The discrete question before us is instead whether Congress used the term “personal privacy” to refer to the privacy of artificial persons in FOIA Exemption 7(C); the cases AT&T cites are too far afield to be of help here. AT&T concludes that the FCC has simply failed to demonstrate that the phrase “personal privacy” “necessarily excludes the privacy of corporations.” Id., at 31-32 (emphasis added). But construing statutory language is not merely an exercise in ascertaining “the outer limits of [a word’s] definitional possibilities,” Dolan v. Postal Service, 546 U. S. 481, 486 (2006). AT&T has given us no sound reason in the statutory text or context to disregard the ordinary meaning of the phrase “personal privacy.” Ill The meaning of “personal privacy” in Exemption 7(C) is further clarified by the rest of the statute. Congress enacted Exemption 7(C) against the backdrop of pre-existing FOIA exemptions, and the purpose and scope of Exemption 7(C) becomes even more apparent when viewed in this context. See Nken v. Holder, 556 U. S. 418, 426 (2009) (“statutory interpretation turns on ‘the language itself, the specific context in which that language is used, and the broader context of the statute as a whole’ ” (quoting Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997))). Two of those other exemptions are particularly relevant here. The phrase “personal privacy” first appeared in the FOIA exemptions in Exemption 6, enacted in 1966, eight years before Congress enacted Exemption 7(C). See 80 Stat. 250, codified as amended at 5 U. S. C. § 552(b)(6). Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” § 552(b)(6). Not only did Congress choose the same term in drafting Exemption 7(C), it also used the term in a nearly identical manner. Although the question whether Exemption 6 is limited to individuals has not come to us directly, we have regularly referred to that exemption as involving an “individual’s right of privacy.” Department of State v. Ray, 502 U. S. 164, 175 (1991) (quoting Department of Air Force v. Rose, 425 U. S. 352, 372 (1976); internal quotation marks omitted); see also Department of State v. Washington Post Co., 456 U. S. 595, 599 (1982). AT&T does not dispute that “identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007), but contends that “if Exemption 6 does not protect corporations, it is because [it] applies only to ‘personnel and medical files and similar files,’ ” not because of the term “personal privacy.” AT&T Brief 36 (quoting § 552(b)(6)). Yet the significance of the pertinent phrase— “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” § 552(b)(6) — cannot be so readily dismissed. Without it, Exemption 6 would categorically exempt “personnel and medical files” as well as any “similar” file. Even if the scope of Exemption 6 is also limited by the types of files it protects, the “personal privacy” phrase importantly defines the particular subset of that information Congress sought to exempt. See Washington Post Co., supra, at 599. And because Congress used the same phrase in Exemption 7(C), the reach of that phrase in Exemption 6 is pertinent in construing Exemption 7(C). In drafting Exemption 7(C), Congress did not, on the other hand, use language similar to that in Exemption 4. Exemption 4 pertains to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. § 552(b)(4). This clearly applies to corporations — it uses the defined term “person” to describe the source of the information — and we far more readily think of corporations as having “privileged or confidential” documents than personally private ones. So at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation’s commercial and financial information, and another that we have described as relating to “individuals.” The language of Exemption 7(C) tracks the latter. The Government has long interpreted the phrase “personal privacy” in Exemption 7(C) accordingly. Shortly after Congress passed the 1974 amendments that enacted Exemption 7(C), the Attorney General issued a memorandum to executive departments and agencies explaining that “personal privacy” in that exemption “pertains to the privacy interests of individuals.” U. S. Dept. of Justice, Attorney General’s Memorandum on the 1974 Amendments to the Freedom of Information Act 9, reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub. L. 93-502), 94th Cong., 1st Sess., 507, 519 (Joint Comm. Print 1975). The exemption, the Attorney General noted, “does not seem applicable to corporations or other entities.” Ibid. We have previously viewed this Memorandum as a reliable guide in interpreting FOIA, see National Archives and Records Admin. v. Favish, 541 U. S. 157, 169 (2004); FBI v. Abramson, 456 U. S. 615, 622, n. 5 (1982), and we agree with its conclusion here. * * * We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally. The judgment of the Court of Appeals is reversed. It is so ordered. Justice Kagan took no part in the consideration or decision of this case.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 37 ]	sc_adminaction
AMERICAN TRUCKING ASSOCIATIONS, INC. ET AL. v. UNITED STATES et al. NO. 26. Argued November 17-18, 1952. Decided January 12, 1953. Harry E. Boot and Wilbur M. Brucker argued the cause for appellants in No. 26. On the brief were Mr. Boot and Peter T. Beardsley for the American Trucking Associations, Inc., George S. Dixon for the National Automobile Transporters Association et al., Herbert Baker and Noel F. George for the Association of Highway Steel Transporters, Inc., Joseph H. Blackshear for the Watkins Motor Lines, Inc. et al., James W. Wrape for the Gordons Transports, Inc. et al., and John S. Burchmore for the National Industrial Traffic League, appellants. Howell Ellis argued the cause for appellants in No. 35. With him on the brief was Milton E. Diehl. With them on the Statement as to Jurisdiction was John S. Burchmore. Neil Brooks argued the cause for appellant in No. 36. With him on the brief was W. Carroll Hunter. Ralph S. Spritzer argued the cause for the United States and the Interstate Commerce Commission, appellees. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Clapp and Edward M. Beidy. Philip B. Perlman, then Solicitor General, Daniel W. Knowlton and Mr. Reidy filed motions to dismiss for the United States and the Interstate Commerce Commission in Nos. 26 and 35. Burton K. Wheeler argued the cause for the Brotherhood of Teamsters-Chauffeurs-Warehousemen & Helpers of America, appellee. With him on the brief were Edward K. Wheeler, Robert G. Seaks and J. Albert Woll. Carl Helmetag, Jr. argued the cause for the Intervening Railroads, appellees. With him on the brief were Charles Clark and Joseph F. Hays. With them on a motion to affirm were Frank W. Gwathmey and Joseph F. Johnson in No. 26. Franklin R. Overmyer argued the cause and filed a brief for the Chicago Suburban Motor Carriers Association et al., appellees. Robert N. Burchmore, Nuel D. Belnap and John S. Burchmore filed a brief for the National Industrial Traffic League, appellant in Nos. 26 and 35. Briefs of amici curiae supporting appellants were filed by Edward R. Adams, Drew L. Carraway and Homer 8. Carpenter for the Greyvan Lines, Inc.; and by Mr. Brucker and Harold J. Waples for the Movers Conference of America. Smith Troy, Attorney General, filed a brief for the State of Washington, as amicus curiae, urging affirmance. Mr. Justice Reed delivered the opinion of the Court. These appeals attack new Interstate Commerce Commission rules governing the use of equipment by authorized motor carriers when the equipment is not owned by the carrier but is leased from the owner or obtained by interchange with another authorized carrier. They were prescribed by the Commission and reported Ex Parte No. MC-43, Lease and Interchange of Vehicles by Motor Carriers, 52 M. C. C. 675. As will be seen from the portions we have quoted in the Appendix, post, p. 323, they principally require carrier inspection; when the equipment is leased, control for a minimum of thirty days and a method of compensation other than division of revenues between lessor and lessee; and, in the case of use of another carrier’s equipment, authorization to the exchange point and actual transfer of control. Thus the practice of using leased equipment and that obtained by interchange is brought into conformity with the regulation of carrier-owned equipment to avoid evils that had grown up in that practice. Some six suits were instituted to test the validity of the rules in the district courts under 28 U. S. C. §§ 2321-2325. Three were stayed by orders and one was not moved pending disposition of the instant cases. These came here on direct appeal from two separate judgments denying the injunctive relief prayed for; one in the Southern District of Indiana, Eastern Motor Express, Inc. v. United States, 103 F. Supp. 694, and the other in the Northern District of Alabama, American Trucking Associations, Inc. v. United States, 101 F. Supp. 710. The issues there considered and resolved against the applicants concerned the Commission’s authority under the Motor Carrier Act of 1935, Interstate Commerce Act, Part II, 49 Stat. 543, as amended, 54 Stat. 919, 49 U. S. C. § 301 et seq.; the impact of the rules on agricultural trucking and on the guaranteed right of authorized carriers to augment their equipment; the application of the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq.; and the right of the protestants to introduce additional evidence in the district courts. Since there were only minor differences in the content of the two cases appealed, they may be treated together. I. Introduction. — We consider at the outset the existing conditions of the motor truck industry and its regulation as developed during the Commission's hearings because only against such a background are the rules meaningful. Commission authorization in the form of permits or certificates of convenience and necessity is a precondition to interstate service by virtue of the Motor Carrier Act. Such authorization, except under the “grandfather” clause, is granted only after a showing of fitness and ability to perform and a public need for the proffered service. And it specifically limits the scope and business of the permitted operations in the case of a contract carrier, and the routes and termini which may be served by a certificated common carrier. The Act waives these conditions of agency authorization and service limitations for a sizable portion of the industry, however. Most important of the exempt operations are those involving equipment used in the transportation of agricultural products. By and large, the equipment in this category is owned and operated by the same person. It falls only within the Commission’s jurisdiction over drivers’ qualifications, hours of service and safety. And so there is no mandate on these exempt owner-operators to provide adequate and nondiscriminatory service, adhere to published rates, and comply with the strict insurance requirements imposed on carriers authorized for general carriage. Because of the limiting character of the regulatory system, authorized carriers have developed a wide practice of using nonowned equipment. They have moved in two directions. The first is interchange. This includes those arrangements whereby two or more certificated carriers provide for through travel of a load in order to merge the advantages of certification to serve different areas. In this fashion, a wholly or partially loaded trailer may be exchanged at the established interchange point, or even an entire truck travel the line without interruption, under the guise of a shift in control. The second is leasing. This relates to the use of exempt equipment in authorized operations. Carriers subject to Commission jurisdiction have increasingly turned to owner-operator truckers to satisfy their need for equipment as their service demands. By a variety of arrangements, the authorized carriers hire them to conduct operations under the former’s permit or certificate. Such operators thus travel approved routes with nonexempt property, and in the great majority of instances sever connections with their lessee carrier at the end of the trip. The use of nonowned equipment by authorized carriers is not illegal, either under the Act or the rules under consideration. But evidence is overwhelming that a number of satellite practices directly affect the regulatory scheme of the Act, the public interest in necessary service and the economic stability of the industry, and it is on these that the rules focus. It appears, for instance, that while many arrangements are reduced to writing, oral leases are common; some were concluded after the trips were made and in several cases exempt operators solicited business themselves with blank authorized carrier forms or other evidence of agency. It is strongly urged that this very informality of the contractual relationship between carrier and exempt operator creates conditions in the industry inconsistent with those which the Act contemplates. Proof was proffered during the proceedings that the informal and tenuous relationships in lease and interchange permit evasions of the limitations on certificated or permitted authority. Since the driver of the exempt equipment is not an employee of the carrier, sanctions for violation of geographical restrictions are clearly difficult to impose, especially in the case of the single-trip lessor. Interchange may, as well, become a device to circumvent geographical restrictions in the certificate. The practice of authorized carriers conducting operations beyond the territory they are entitled to serve under cover of a lease from the local carrier was clearly shown in the evidence before the Commission. It appeared, in fact, that some of these operations are entirely fictional, being created ad hoc after the trip is made — and this at times in the wake of a specific denial by the Commission of an application to serve the area. It was also alleged, and shown by evidence of some incidents, that the Commission’s safety requirements were not observed by exempt lessors. Because of the fact that the great bulk of the arrangements cover only one trip, leasing carriers have little opportunity or desire to inspect the equipment used, especially in cases where the agreement is made without the operator’s appearance at the carrier’s terminal. Enforcement sanctions by the carriers for violations would be clearly as difficult to impose as route standards. Hence, the carrier may not extend the supervision of rest periods, doctors’ certificates, brakes, lights, tires, steering equipment and loading, normally accorded his own employees and vehicles, to equipment and drivers secured through lease. And the owner-operator himself is called upon to push himself and his truck because of the economic impact of time spent off the road and investment in repairs on his slim profit margin. Further, the absence of written agreements has made the fixing of the lessee’s responsibility for accidents highly difficult. Consequences on the economic stability of the industry were also noted. The carrier engaged in leasing practice is at the mercy of the cost and supply of exempt equipment available to him. Hence, he may at times find himself unable to undertake shipping obligations because no trucks are available willing to make a relatively unprofitable trip or to assume the burdens of less-than-carload service. Certification is granted on a showing that a concern is fit and willing to provide nondiscriminatory service required by the public convenience. To sustain this obligation, the authorized integrated carrier who finds his leasing competitor only willing to undertake the more profitable ventures may be obliged to rely on miscellaneous freight without compensating economic long carload hauls to sustain estimated profit margins. Use of exempt equipment by authorized carriers also tends to obstruct normal rate regulation. Schedules are traditionally grounded in costs. But the cost picture of a carrier who depends largely on leased equipment is far different from that of a carrier owning his own trucks. Not only is the former able to undertake operations with relatively slight investment. As well, his current overhead involved in operating leased equipment is solely administrative, the owner of the exempt equipment bearing the expense of gas, oil, tires, wages and depreciation out of his share of the fee. And to refer to the exempt owner’s own expenses as determinative of what is a “reasonable” rate would be manifestly impossible as long as the relationships between lessor and lessee are too tenuous, short-termed and informal and the compensation of each based on a division of revenue. It is claimed that the practice in fact has had a demoralizing effect on the industry. Authorized carriers find it advantageous to expand their operations by leased equipment because of the fact that no investment is required, nor is the risk of empty return trips and other overhead incurred. Hence, carriers owning their own trucks face a fluid rate structure in competition with those specializing in use of exempt equipment, especially where such equipment is offered for a trip, as it often is, for expenses. There is thus a pressure on the certificated operator to enter the leasing field and hence expand the effect of these conditions and practices on efficient, safe and nondiscriminatory truck service which the Act is designed to promote. II. Commission Proceedings. — All before us admit the difficulties which have developed. In fact, the Commission has considered them for some years. As early as 1940, following complaints, the Bureau of Motor Carriers held hearings on the subject which culminated in a statistical report in 1943. The necessity of maximum use of transportation resources during the war postponed any action thereafter until 1947. In that year, however, the Director of the Bureau reinstituted discussion, had suggested regulations drafted, and drew on his field staff for reports of the use of the exempt vehicles by authorized carriers. The present proceedings were instituted by the Commission on January 9,1948, when it became apparent that carrier agreement regarding a proper solution was unlikely. Its order, published at 13 Fed. Reg. 369, declared all authorized carriers respondents and set forth the practices to be investigated, four possible schemes of regulation, and suggested rules. A qualified examiner thereafter heard some 80 witnesses in Washington and St. Louis, and issued a report and proposed rules. A full report by the Commission’s Division 5 followed on June 26, 1950, confirming the examiner’s findings and amending his proposals, and, following petitions for reconsideration, the entire Commission reopened proceedings for oral argument. The Commission’s report, dated May 8, 1951, in effect adopted the examiner’s proposed rules, after affirming and reiterating the nature and effect of leasing and interchange practices on the industry and regulation under the Act. III. The Rules. — In this final form, the rules establish as conditions to the use of nonowned equipment by authorized carriers the reduction of the contracts to writing. Rule § 207.4 (a) (2), 52 M. C. C. 744. It is required that such contracts vest exclusive possession of, and responsibility for, the equipment in the authorized carrier during the rental, Rule § 207.4 (a) (4), the life of which must exceed thirty days when the driver is the owner or his employee. Rule § 207.4 (a) (3). Finally, the contract must fix the compensation of the lessor, which may not be measured by a percentage of the gross revenue. Rule § 207.4 (a) (5). Interchange agreements between two authorized carriers must also be in writing and the equipment must be driven by an employee of the certificated carrier over whose authorized route it travels. Rule § 207.5 (a), (c). The rules also require inspection of nonowned equipment when the lessee carrier takes possession, Rule § 207.4 (c), as well as the identification of the trucks as within its responsibility, Rule § 207.4 (d), and the testing of the driver’s familiarity with Motor Carrier Safety Regulations. Rule § 207.4 (e). Records of the use of rented and interchanged equipment are mandatory. Rule § 207.4 (f). IV. Commission Authority. — Appellants focus their principal attack on the lease provisions requiring a thirty-day period of carrier control and a measure of compensation other than revenue splitting. All agree that the rules thus abolish trip-leasing. Unfortunate consequences are predicted for the public interest because the exempt owner-operator will no longer be able to hire himself out at will — in sum, that the industry’s ability to serve a fluctuating demand will suffer and transportation costs accordingly go up. It is the Commission’s position that the industry and the public will benefit directly because of the stabilization of conditions of competition and rate schedules, and that in fact the continued effectiveness of the Commission’s functions under the Motor Carrier Act is dependent on regulation of leasing and interchange. Needless to say, we are ill equipped to weigh such predictions of the economic future. Nor is it our function to act as a super-commission. So we turn to the legal considerations so strongly urged on us. Here, appellants have framed their position as a broadside attack on the Commission’s asserted power. All urge upon us the fact that nowhere in the Act is there an express delegation of power to control, regulate or affect leasing practices, and it is further insisted that in each separate provision of the Act granting regulatory authority there is no direct implication of such power. Our function, however, does not stop with a section-by-section search for the phrase “regulation of leasing practices” among the literal words of the statutory provisions. As a matter of principle, we might agree with appellants’ contentions if we thought it a reasonable canon of interpretation that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do include specific consideration of every evil sought to be corrected. But no great acquaintance with practical affairs is required to know that such prescience, either in fact or in the minds of Congress, does not exist. National Broadcasting Co. v. United States, 319 U. S. 190, 219-220; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 193-194. Its very absence, moreover, is precisely one of the reasons why regulatory agencies such as the Commission are created, for it is the fond hope of their authors that they bring to their work the expert's familiarity with industry conditions which members of the delegating legislatures cannot be expected to possess. United States v. Pennsylvania R. Co., 323 U. S. 612. Moreover, we must reject at the outset any conclusion that the rules as a whole represent an attempt by the Commission to expand its power arbitrarily; there is clear and adequate evidence of evils attendant on trip-leasing. The purpose of the rules is to protect the industry from practices detrimental to the maintenance of sound transportation services consistent with the regulatory system. Sections 216 (b) and 218 (a) of the Act, for instance, require the filing of a just and reasonable rate schedule by each common carrier, and the violation of these rates and the demoralization of rate structures generally are a probable concomitant of current leasing practices. Section 204 (a) (2) requires the Commission to impose rules relating to safety of operation for vehicles and drivers. These are likewise threatened by the unrestricted use of nonowned equipment by the common carriers. And the requirements of continuous service in § 204 (a)(1), of observance of authorized routes and termini under §§ 208 (a) and 209 (b), and the prohibitions of rebates, §§ 216 (d), 217 (b), 218 (a) and 222 (c), also may be ignored through the very practices here proscribed. So the rules in question are aimed at conditions which may directly frustrate the success of the regulation undertaken by Congress. Included in the Act as a duty of the Commission is that “[t]o administer, execute, and enforce all provisions of this part, to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration.” §204 (a)(6). And this necessary rule-making power, coterminous with the scope of agency regulation itself, must extend to the “transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation,” regulation of which is vested in the Commission by § 202 (a). See also § 203 (a) (19). We cannot agree with appellants’ contention that the rule-making authority of § 204 (a) (6) merely concerns agency procedures and is solely administrative. It ignores the distinct reference in the section to enforcement. Furthermore, the power of the Commission to make rules applicable to transfers of certificates or permits is recognized by §212 (b). That section permits transfers “pursuant to such rules and regulations as the Commission may prescribe.” It does not strain logic or experience to look upon leasing of exempt equipment and interchange as a transfer, temporary in nature, of the carrier’s authorized right to serve his specified area; in fact we think this interpretation is dramatically supported here by the evidence that owner-operators themselves take the initiative in securing cargoes, while the carriers accept only the administrative function of approving the use of the nonowned equipment over their authorized routes and under their names. It is an unnatural construction of the Act which would require the Commission to sit idly by and wink at practices that lead to violations of its provisions. We hold then that the promulgation of these rules for authorized carriers falls within the Commission’s power, despite the absence of specific reference to leasing practices in the Act. See General Tank Car Corp. v. Terminal Co., 308 U. S. 422, 432. The grant of general rule-making power necessary for enforcement compels this result. It is foreshadowed, of course, by United States v. Pennsylvania R. Co., 323 U. S. 612. That case validated an order requiring railroads to lease cars to a competing carrier by sea, in spite of the inability of the Commission to ground its action on some specific provision of the Act. 323 U. S., at 616. This Court pointed to the fact that the “unquestioned power of the Commission to require establishment of [through] routes would be wholly fruitless, without the correlative power to abrogate the Association’s rule which prohibits the interchange.” 323 U. S., at 619. There is evidence here that convinces us that that regulation of leasing practices is likewise a necessary power; in fact, we think its exercise more crucial than in United States v. Pennsylvania R. Co. The enforcement of only one phase of the Act was there endangered; here, practically the entire regulatory scheme is affected by trip-leasing. A fair analogy appears between the conditions which brought about the Motor Carrier Act and those sought to be corrected by the present rules, confirming our view of the Commission’s jurisdiction. Then the industry was unstable economically, dominated by ease of competitive entry and a fluid rate picture. And as a result, it became overcrowded with small economic units which proved unable to satisfy even the most minimal standards of safety or financial responsibility. So Congress felt compelled to require authorization for all interstate operations to preserve the motor transportation system from over-competition, while at the same time protecting existing routes through the “grandfather” clause. The Commission’s rule-making here considered is based on conditions that similarly threaten, though perhaps to a lesser degree, the efficient operation of the industry today. And as exercised, the power under § 204 (a) (6) is geared to and bounded by the limits of the regulatory system of the Act which it supplements. It is thus as clearly defined for constitutional purposes as the specified functions of the Commission, and so reliance on Schechter Poultry Corp. v. United States, 295 U. S. 495, 529, and Panama Refining Co. v. Ryan, 293 U. S. 388, 421, is misplaced. We reject for similar reasons the contention that Federal Power Commission v. Panhandle Eastern Pipe Line Co., 337 U. S. 498, is controlling here. Our holding that the Federal Power Commission’s authority did not extend to production and gathering of natural gas was specifically grounded in a provision of the Natural Gas Act to that effect. 337 U. S., at 504-505. V. The National Transportation Policy. — What we have said above answers appellants’ companion contention that the rules are invalid because they violate the National Transportation Policy as set out in 49 U. S. C., preceding § 1. Regulation under the Act is there declared to be in the interests of the preservation of the inherent advantages of all modes of transportation, and of an economically sound, safe, and efficient industry. See United States v. Rock Island Motor Transit Co., 340 U. S. 419, and United States v. Texas & Pacific Motor Transport Co., 340 U. S. 450. But no overly-nice distinction between law and policy is needed to support the view that the question is hardly one for the courts; it is clear that the rules represent, at best, a compromise between stability and flexibility of industry conditions, each alleged to be in the national interest, and we can only look to see if the Commission has applied its familiarity with transportation problems to these conflicting considerations. The mere fact that a contrary position was taken during the war years when active interchange and leasing were required, that the Commission has never before restricted trip-leasing and has in fact approved it from time to time, does not change our function. VI. Reasonableness of Rules and Exemptions Therefrom. — The relationship of these rules to the regulatory scheme they are designed to protect forms a basis for the answer to the various allegations that certain rules are arbitrary. For our purposes, such an argument must mean that the Commission had no reasonable ground for the exercise of judgment. In the instant case, such is not the situation; the evidence marshalled before the Commission plainly supports the conclusion that the continued effectiveness of its regulation requires the rules prescribed. We also affirm a reasonable relationship between the aims of the federal regulatory scheme and the exemptions in the rules. That as to interchange between carriers over routes which both are authorized to serve, Rule § 207.3 (a), is founded on the proposition that unauthorized certificate extensions are here impossible. The exemption extended to trucking equipment used in railway express operations, Rule § 207.3 (b), which are largely confined to municipalities and contiguous areas, and short trips, duplicates the similar exemption applicable to contract and common carriers in Rule § 207.3 (c). It is alleged that the exclusion of the substituted motor-for-rail transport equipment from the rules’ coverage by Rule § 207.3 (b) also is based on the fact that the evils of unauthorized service, lax observation of safety regulations, and demoralized competitive conditions are not present in such operations. As the Commission found, the leasing practices in the field are undertaken through long-term contracts with certain established lessors, and the equipment inspected and controlled by the railroads, and identified with its name. In such a context, the exemption is not unreasonable; certainly it is not required that the Commission extend its supervisory activities under the rules into fields where the evidence before it indicates no need, merely to satisfy some standard of paper equality. And this is especially so in the field of substituted motor-for-rail carriage which falls within the Commission’s strict regulation by virtue of the restrictions which we approved in United States v. Rock Island Motor Transit Co., 340 U. S. 419, and United States v. Texas & Pacific Motor Transport Co., 340 U. S. 450. The exemption for plans of operations merged under § 5 of the Act, Rule § 207.3 (d), is said to have been directed solely toward Allied Van Lines, whose § 5 proceeding, reported Evanston Fireproof Warehouse—Control—Allied Van Lines, 40 M. C. C. 557, involving a unique leasing arrangement by stockholding hauling agents under the company’s name, has already been scrutinized by the Commission. Since Allied operates entirely with equipment supplied under this arrangement, and since the Commission has specifically approved it, it seems to us that the exemption has a reasonable basis; the guarantees of insurance coverage, financial responsibility, lessee route control and equipment identification in Allied’s operations, 40 M. C. C. 551, 563-566, promise protection against the evils the rules seek to correct. VII. Preservation of the Right to Augment Equipment. — Appellants further contend, however, that the rules in effect will violate the protections in §§ 208 (a) and 209 (b) of the Act of the carriers’ right to augment their equipment. We do not agree. The provisos in question are not to be read as blanket restrictions on the Commission’s regulatory powers; they are aimed at the restrictions on the increase in volume of traffic through acquisition of additional vehicles. Clearly, a numerical limitation would be invalid, but the Commission’s refusal to permit carriers to secure and use equipment which does not satisfy its safety, loading, and licensing rules would not. As we pointed out in Crescent Express Lines, Inc. v. United States, 320 U. S. 401, 408, in sustaining a certificate limited to seven-passenger vehicles, since § 208 “requires the Commission to specify the service to be rendered, this could not be done without power also to specify the general type of vehicle to be used.” We think it equally apparent that regulation of the conditions and circumstances of the use of nonowned vehicles is not a “limitation on the addition of more vehicles of the authorized type.” 320 U. S., at 409. VIII. Preservation of Agricultural Exemption. — As indicated above, the Act also exempts from Commission jurisdiction “motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation,” § 203 (b) (6), and appellants, and particularly the intervening Secretary of Agriculture, urge that the rules will drastically reduce the significance of this section in violation of Congress’ intent. All admit, of course, that the rules do not directly apply to agricultural equipment; it is merely required that authorized carriers using such trucks comply with certain provisions. But it is contended that the preconditions to such use imposed on those within Commission jurisdiction will wipe out much of the trafile which the agricultural carriers have heretofore engaged in. It appears, for instance, that a substantial leasing is built on agricultural haulers who would otherwise return empty to their place of departure, having unloaded the farm produce carried; the authorized carriers have found them prepared to accept a one-trip engagement for the return route. The thirty-day lease provision will make such arrangements impossible. We are unable, however, to conclude that the economic danger to the agricultural truckers from these rules constitutes a violation of § 203 (b) (6). The mere fact that commercial carriers of agricultural products will hereafter be required to establish their charges on the basis of an empty return trip is not the same as bringing them within. Commission jurisdiction generally. The exemption extends, by its own words, to carriage of agricultural products, and not to operations where the equipment is used to carry other property. Needless to say, the statute is not designed to allow farm truckers to compete with authorized and certificated motor carriers in the carriage of non-agricultural products or manufactured products for off-the-farm use, merely because they have exemption when carrying only agricultural products. We can therefore find nothing in it which implies protection of agricultural truckers’ right to haul other property, even though from an economic standpoint that right is important to protect profit margins. Regulated truckers must also receive protection upon their restricted routes and limited carriage. A balance between these competing factors, carried out in accordance with congressional purpose, does not seem to us unreasonable or invalid. IX. Agency Procedure. — We need not pause long over certain procedural objections which appellants have interposed. They object that the rules were the product of proceedings fatally at variance with certain requirements of the Administrative Procedure Act. Appellants in No. 35 point to the requirement of § 7 (c), that “the proponent of a rule or order shall have the burden of proof,” and insist that the Commission, or its Motor Carriers Bureau which drew up suggested rules published as a supplement to the hearing order, 13 Fed. Reg. 369, did not satisfy this burden by preponderating evidence. But even assuming that the Commission was a statutory “	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 65 ]	sc_adminaction
KINGSLAND, COMMISSIONER OF PATENTS, v. DORSEY. No. 53. Argued October 18-19, 1949. Decided November 21, 1949. Robert L. Stern argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney, Melvin Richter and Roy C. Hackley. William E. Leahy argued the cause for respondent. With him on the brief were William J. Hughes, Jr. and James F. Reilly. Per Curiam. Acting under the provisions of § 487 of the Revised Statutes (35 U. S. C. § 11), the Commissioner of Patents found after hearings that petitioner, an attorney, had been guilty of gross misconduct, and entered an order barring him from practice before the United States Patent Office. Pursuant to authority granted by the same provisions, the District Court reviewed the Commissioner’s order. Concluding that the hearings had been fairly conducted after due notice of charges and that there was substantial evidence to support the findings and action of the Commissioner, the District Court affirmed the order. 69 F. Supp. 788. The Court of Appeals reversed, 84 U. S. App. D. C. 264, 173 F. 2d 405. A majority of that court thought the notice of charges inadequate and the proceedings before the Commission unfair. It also held that the District Court had too narrowly restricted its scope of review in holding that substantial evidence was sufficient to support the findings. It apparently drew a distinction between the phrases “substantial evidence” and “substantial probative evidence.” Measuring the findings by the latter phrase, it held that the Commissioner’s findings were not supported by “substantial probative evidence.” Judge Edgerton, dissenting, thought the hearings had been fairly conducted and “the result just.” He agreed with the District Court that “substantial evidence” would have been sufficient but went on to say that he thought the “proof conclusive.” The statute under which the Commissioner acted represents congressional policy in an important field. It relates to the character and conduct of “persons, agents, or attorneys” who participate in proceedings to obtain patents. We agree with the following statement made by the Patent Office Committee on Enrollment and Disbarment that considered this case: “By reason of the nature of an application for patent, the relationship of attorneys to the Patent Office requires the highest degree of candor and good faith. In its relation to applicants, the Office . . . must rely upon their integrity and deal with them in a spirit of trust and confidence . . . .” It was the Commissioner, not the courts, that Congress made primarily responsible for protecting the public from the evil consequences that might result if practitioners should betray their high trust. Having serious doubts as to whether the Court of Appeals acted properly here in nullifying the Commissioner’s order, we granted certiorari. After an examination of the record we are satisfied that the findings were amply . supported whether the measure be “substantial evidence” or “substantial probative evidence.” The charge of unfairness in the hearings is, we think, wholly without support. Since the narration of evidence and discussion of the proceedings sufficiently appear in the District Court’s opinion, reiteration here can serve no good purpose either for the parties or for the law. The judgment of the Court of Appeals is reversed and that of the District Court affirmed. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of this case.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 93 ]	sc_adminaction
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. ROY et al. No. 84-780. Argued January 14, 1986 Decided June 11, 1986 Burger, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Brennan, Marshall, Blackmun, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined, and an opinion with respect to Part III, in which Powell and Rehnquist, JJ., joined. Blackmun, J., filed an opinion concurring in part, post, p. 712. Stevens, J., filed an opinion concurring in part and concurring in the result, post, p. 716. O’Connor, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined, post, p. 724. White, J., filed a dissenting opinion, post, p. 733. Deputy Solicitor General Geller argued the cause for appellants. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Willard, Kathryn A. Oberly, and Peter R. Maier. Gary S. Gildin argued the cause for appellees. With him on the brief were Franklin A. Miles, Jr., Stefan Presser, and Charles S. Sims. Briefs of amici curiae urging affirmance were filed for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the National Congress of American Indians et al. by Steven C. Moore; and for the Rutherford Institute et al. by W. Charles Bundren, Guy 0. Farley, Jr., John W. Whitehead, James J. Knicely, Thomas 0. Kotouc, Wendell R. Bird, and William B. Hollberg. Chief Justice Burger announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which Justice Powell and Justice Rehnquist join. The question presented is whether the Free Exercise Clause of the First Amendment compels the Government to accommodate a religiously based objection to the statutory requirements that a Social Security number be provided by an applicant seeking to receive certain welfare benefits and that the States use these numbers in administering the benefit programs. I Appellees Stephen J. Roy and Karen Miller applied for and received benefits under the Aid to Families with Dependent Children program and the Food Stamp program. They refused to comply, however, with the requirement, contained in 42 U. S. C. § 602(a)(25) and 7 U. S. C. § 2025(e), that participants in these programs furnish their state welfare agencies with the Social Security numbers of the members of their household as a condition of receiving benefits. Appellees contended that obtaining a Social Security number for their 2-year-old daughter, Little Bird of the Snow, would violate their Native American religious beliefs. The Pennsylvania Department of Public Welfare thereafter terminated AFDC and medical benefits payable to appellees on the child’s behalf and instituted proceedings to reduce the level of food stamps that appellees’ household was receiving. Appellees then filed this action against the Secretary of the Pennsylvania Department of Public Welfare, the Secretary of Health and Human Services, and the Secretary of Agriculture, arguing that the Free Exercise Clause entitled them to an exemption from the Social Security number requirement. In their complaint, appellees stated that “[t]he sole basis” for the denial of welfare benefits was “Mr. Roy’s refusal to obtain a Social Security Number for Little Bird of the Snow,” and thus requested injunctive relief, damages, and benefits. In the statement of “undisputed facts,” the parties agreed that Little Bird of the Snow did not have a Social Security number. At trial, Roy testified that he had recently developed a religious objection to obtaining a Social Security number for Little Bird of the Snow. Roy is a Native American descended from the Abenaki Tribe, and he asserts a religious belief that control ove¥ one’s life is essential to spiritual purity and indispensable to “becoming a holy person.” Based on recent conversations with an Abenaki chief, Roy believes that technology is “robbing the spirit of man.” In order to prepare his daughter for greater spiritual power, therefore, Roy testified to his belief that he must keep her person and spirit unique and that the uniqueness of the Social Security number as an identifier, coupled with the other uses of the number over which she has no control, will serve to “rob the spirit” of his daughter and prevent her from attaining greater spiritual power. For purposes of determining the breadth of Roy’s religious concerns, the trial judge raised the possibility of using the phonetics of his daughter’s name to derive a Social Security number. Although Roy saw “a lot of good” in this suggestion, he stated it would violate his religious beliefs because the special number still would apply uniquely and identify her. Roy also testified that his religious objection would not be satisfied even if the Social Security Administration appended the daughter’s full tribal name to her Social Security number. In Roy’s own testimony, he emphasized the evil that would flow simply from obtaining a number. On the last day of trial, however, a federal officer inquired whether Little Bird of the Snow already had a Social Security number; he learned that a number had been assigned — under first name “Little,” middle name “Bird of the Snow,” and last name “Roy.” The Government at this point suggested that the case had become moot because, under Roy’s beliefs, Little Bird of the Snow’s spirit had already been “robbed.” Roy, however, was recalled to the stand and testified that her spirit would be robbed only by “use” of the number. Since no known use of the number had yet been made, Roy expressed his belief that her spirit had not been damaged. The District Court concluded that the case was not moot because of Roy’s beliefs regarding “use” of the number. See Roy v. Cohen, 590 F. Supp. 600, 605 (MD Pa. 1984) (finding of fact 33) (“Roy believes that the establishment of a social security number for Little Bird of the Snow, without more, has not ‘robbed her spirit,’ but widespread use of the social security number by the federal or state governments in their computer systems would have that effect”). After hearing all of the testimony, the District Court denied appellees’ request for damages and benefits, but granted injunctive relief. Based on the testimony of the Government’s experts and the obvious fact that many people share certain names, the District Court found that “[utilization in the computer system of the name of a benefit recipient alone frequently is not sufficient to ensure the proper payment of benefits.” The court nevertheless concluded that the public “interest in maintaining an efficient and fraud resistant system can be met without requiring use of a social security number for Little Bird of the Snow,” elaborating: “It appears to the Court that the harm that the Government might suffer if [appellees] prevailed in this case would be, at worst, that one or perhaps a few individuals could fraudulently obtain welfare benefits. Such a result would obtain only if (1) Little Bird of the Snow attempted fraudulently to obtain welfare benefits or someone else attempted fraudulently to obtain such benefits using Little Bird of the Snow’s name and (2) identification procedures available to the Defendants that do not require utilization of a social security number failed to expose the fraud. This possibility appears to the Court to be remote.” Id., at 612-613. Citing our decision in United States v. Lee, 455 U. S. 252 (1982), the court entered an injunction containing two basic components. First, the Secretary of Health and Human Services was “permanently restrained from making any use of the social security number which was issued in the name of Little Bird of the Snow Roy and from disseminating the number to any agency, individual, business entity, or any other third party.” Second, the federal and state defendants were enjoined until Little Bird of the Snow’s 16th birthday from denying Roy cash assistance, medical assistance, and food stamps “because of the [appellees’] refusal to provide a social security number for her.” We noted probable jurisdiction, 472 U. S. 1016 (1985), and we vacate and remand. II Appellees raise a constitutional challenge to two features of the statutory scheme here. They object to Congress’ requirement that a state AFDC plan “must... provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number.” 42 U. S. C. § 602(a)(25) (emphasis added). They also object to Congress’ requirement that “such State agency shall utilize such account numbers... in the administration of such plan.” Ibid, (emphasis added). We analyze each of these contentions, turning to the latter contention first. Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. This case implicates only the latter concern. Roy objects to the statutory requirement that state agencies “shall utilize” Social Security numbers not because it places any restriction on what he may believe or what he may do, but because he believes the use of the number may harm his daughter’s spirit. Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” Sherbert v. Verner, 374 U. S. 398, 412 (1963) (Douglas, J., concurring). As a result, Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures. As Roy points out, eight years ago Congress passed a Joint Resolution concerning American Indian religious freedom that provides guidance with respect to this case. As currently codified, the Resolution provides: “On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” 42 U. S. C. § 1996. That Resolution — with its emphasis on protecting the freedom to believe, express, and exercise a religion — accurately identifies the mission of the Free Exercise Clause itself. The Federal Government’s use of a Social Security number for Little Bird of the Snow does not itself in any degree impair Roy’s “freedom to believe, express, and exercise” his religion. Consequently, appellees’ objection to the statutory requirement that each state agency “shall utilize” a Social Security number in the administration of its plan is without merit. It follows that their request for an injunction against use of the Social Security number in processing benefit applications should have been rejected. We therefore hold that the portion of the District Court’s injunction that permanently restrained the Secretary from making any use of the Social Security number that had been issued in the name of Little Bird of the Snow Roy must be vacated. Ill Roy also challenges Congress’ requirement that a state AFDC plan “must... provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number.” 42 U. S. C. §602(a)(25) (emphasis added). The First Amendment’s guarantee that “Congress shall make no law... prohibiting the free exercise” of religion holds an important place in our scheme of ordered liberty, but the Court has steadfastly maintained that claims of religious conviction do not automatically entitle a person to fix unilaterally the conditions and terms of dealings with the Government. Not all burdens on religion are unconstitutional. See Reynolds v. United States, 98 U. S. 145 (1879). This was treated recently in United States v. Lee: “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, but there is a point at which accommodation would ‘radically restrict the operating latitude of the legislature.’” 455 U. S., at 259. The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously or any covert suppression of particular religious beliefs. The administrative requirement does not create any danger of censorship or place a direct condition or burden on the dissemination of religious views. It does not intrude on the organization of a religious institution or school. It may indeed confront some applicants for benefits with choices, but in no sense does it affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons. Rather, it is appellees who seek benefits from the Government and who assert that, because of certain religious beliefs, they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government. This is far removed from the historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause of the First Amendment. See generally M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (1978). We are not unmindful of the importance of many government benefits today or of the value of sincerely held religious beliefs. However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications. This distinction is clearly revealed in the Court’s opinions. Decisions rejecting religiously based challenges have often recited the fact that a mere denial of a governmental benefit by a uniformly applicable statute does not constitute infringement of religious liberty. In Hamilton v. Regents of University of California, 293 U. S. 245 (1934), for example, the Court rejected a religious challenge by students to military courses required as part of their curriculum, explaining: “The fact that they are able to pay their way in this university but not in any other institution in California is without significance upon any constitutional or other question here involved. California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and conscientious objections to war....” Id., at 262. In cases upholding First Amendment challenges, on the other hand, the Court has often relied on the showing that compulsion of certain activity with religious significance was involved. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), for example, the Court distinguished the earlier Hamilton holding and upheld a challenge to a flag salute requirement: “Here... we are dealing with a compulsion of students to declare a belief.... This issue is not prejudiced by the Court’s previous holding that where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunities may not on ground of conscience refuse compliance with such conditions. Hamilton v. Regents, 293 U. S. 245. In the present case attendance is not optional.” 319 U. S., at 631-632. The distinction between governmental compulsion and conditions relating to governmental benefits contained in these two cases was emphasized by Justice Brennan in his concurring opinion in Abington School District v. Schempp, 374 U. S. 203 (1963): “The different results of [Hamilton and Barnette] are attributable only in part to a difference in the strength of the particular state interests which the respective statutes were designed to serve. Far more significant is the fact that Hamilton dealt with the voluntary attendance at college of young adults, while Barnette involved the compelled attendance of young children at elementary and secondary schools. This distinction warrants a difference in constitutional results.” Id., at 252-253 (footnote omitted). We have repeatedly emphasized this distinction: In rejecting á Free Exercise challenge in Bob Jones University v. United States, 461 U. S. 574, 603-604 (1983), for example, we observed that the “[djenial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.” We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. Although the denial of government benefits over religious objection can raise serious Free Exercise problems, these two very different forms of government action are not governed by the same constitutional standard. A governmental burden on religious liberty is not insulated from review simply because it is indirect, Thomas v. Review Board of Indiana Employment Security Div., 450 U. S. 707, 717-718 (1981) (citing Sherbert v. Verner, 374 U. S., at 404); but the nature of the burden is relevant to the standard the government must meet to justify the burden. The general governmental interests involved here buttress this conclusion. Governments today grant a broad range of benefits; inescapably at the same time the administration of complex programs requires certain conditions and restrictions. Although in some situations a mechanism for individual consideration will be created, a policy decision by a government that it wishes to treat all applicants alike and that it does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference. Moreover, legitimate interests are implicated in the need to avoid any appearance of favoring religious over nonreligious applicants. The test applied in cases like Wisconsin v. Yoder, 406 U. S. 205 (1972), is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest. Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest. We reject appellees’ contention that Sherbert and Thomas compel affirmance. The statutory conditions at issue in those cases provided that a person was not eligible for unemployment compensation benefits if, “without good cause,” he had quit work or refused available work. The “good cause” standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be “without good cause” tends to exhibit hostility, not neutrality, towards religion. See Brief for Petitioner 15, and Brief for American Jewish Congress as Amicus Curiae 11, in Thomas v. Review Board of Indiana Employment Security Div., O. T. 1979, No. 79-952. See also Sherbert, supra, at 401-402, n. 4; United States v. Lee, 455 U. S., at 264, n. 3 (Stevens, J., concurring in judgment) (Thomas and Sherbert may be viewed “as a protection against unequal treatment rather than a grant of favored treatment for the members of the religious sect”). In those cases, therefore, it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption. Here there is nothing whatever suggesting antagonism by Congress towards religion generally or towards any particular religious beliefs. The requirement that applicants provide a Social Security number is facially neutral and applies to all applicants for the benefits involved. Congress has made no provision for individual exemptions to the requirement in the two statutes in question. Indeed, to the contrary, Congress has specified that a state AFDC plan “must... provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number,” 42 U. S. C. § 602(a)(25) (emphasis added), and that “[s]tate agencies shall (1) require, as a condition of eligibility for participation in the food stamp program, that each household member furnish to the State agency their social security account number,” 7 U. S. C. § 2025(e) (emphasis added). Nor are these requirements relics from the past; Congress made the requirement mandatory for the Food Stamp program in 1981. Compare 7 U. S. C. § 2025(f) (1976 ed., Supp. IV) (State agencies “may” require that each household member furnish their Social Security number), with 7 U. S. C. § 2025(e) (States “shall” require that such numbers be furnished). Congress also recently extended to several other aid programs the mandatory requirement that the States use Social Security numbers in verifying eligibility for benefits. See Deficit Reduction Act of 1984, Pub. L. 98-369, § 2651(a), 98 Stat. 1147. The Social Security number requirement clearly promotes a legitimate and important public interest. No one can doubt that preventing fraud in these benefits programs is an important goal. As Representative Richmond explained in support of the bill that made the Social Security number requirement mandatory for the Food Stamp program: “We know that however generously motivated Americans may be to furnish resources to the poor to enable them to survive,... they understandably object if they believe that those resources are being abused or wasted.... ‘We want to be certain that the food stamp program is run as efficiently and as error-free as possible. ‘We want applicants and recipients alike constantly to be aware that the Congress does not and will not tolerate any refusal to disclose earnings accurately, and underreporting of welfare or other assistance program benefits, any efforts to evade the work requirement or any other attempts to take advantage of the program and dollars intended only for those who completely satisfy the stringent eligibility requirements set forth in sections 5 and 7 of the Food Stamp Act of 1977 and further tightened this year and in this bill.” 127 Cong. Rec. 24783 (1981). We also think it plain that the Social Security number requirement is a reasonable means of promoting that goal. The programs at issue are of truly staggering magnitude. Each year roughly 3.8 million families receive $7.8 billion through federally funded AFDC programs and 20 million persons receive $11 billion in food stamps. The Social Security program itself is the largest domestic governmental program in the United States today, distributing approximately $51 billion monthly to 36 million recipients. Because of the tremendous administrative problems associated with managing programs of this size, the District Court found: “Social security numbers are used in making the determination that benefits in the programs are properly paid and that there is no duplication of benefits or failure of payment.... Utilization in the computer system of the name of a benefit recipient alone frequently is not sufficient to ensure the proper payment of benefits.” Social Security numbers are unique numerical identifiers and are used pervasively in these programs. The numbers are used, for example, to keep track of persons no longer entitled to receive food stamps because of past fraud or abuses of the program. Moreover, the existence of this unique numerical identifier creates opportunities for ferreting out fraudulent applications through computer “matching” techniques. One investigation, “Project Match,” compared federal employee files against AFDC and Medicaid files to determine instances of Government employees receiving welfare benefits improperly. Data from 26 States were examined, and 9,000 individuals were identified as receiving duplicate welfare payments. While undoubtedly some fraud escapes detection in spite of such investigations, the President’s Private Sector Survey on Cost Control, known more popularly as the “Grace Commission,” recently reported that matching “is the Federal Government’s most cost-effective tool for verification or investigation in the prevention and detection of fraud, waste and abuse.” 7 The President’s Private Sector Survey on Cost Control, Management Office Selected Issues — Information Gap in the Federal Government 90 (1984). The importance of the Social Security number to these matching techniques is illustrated by the facts of this case. The District Court found that “efficient operation of these [matching] programs requires the use of computer systems that utilize unique numerical identifiers such as the social security number.” 590 F. Supp., at 606. It further found that exempting even appellees alone from this requirement could result in “one or perhaps a few individuals... fraudulently obtaining] welfare benefits,” id., at 612, a prospect the court termed “remote.” Id., at 613. The District Court’s assessment of this probability seems quite dubious. But in any event, we know of no case obligating the Government to tolerate a slight risk of “one or perhaps a few individuals” fraudulently obtaining benefits in order to satisfy a religious objection to a requirement designed to combat that very risk. Appellees may not use the Free Exercise Clause to demand Government benefits, but only on their own terms, particularly where that insistence works a demonstrable disadvantage to the Government in the administration of the programs. As the Court has recognized before, given the diversity of beliefs in our pluralistic society and the necessity of providing governments with sufficient operating latitude, some incidental neutral restraints on the free exercise of religion are inescapable. As a matter of legislative policy, a legislature might decide to make religious accommodations to a general and neutral system of awarding benefits, “[b]ut our concern is not with the wisdom of legislation but with its constitutional limitation.” Braunfeld v. Brown, 366 U. S. 599, 608 (1961) (plurality opinion). We conclude that the Congress’ refusal to grant appellees a special exemption does not violate the Free Exercise Clause. The judgment of the District Court is vacated and the case is remanded. It is so ordered. We refer to the statutory scheme as it existed at the time appellees filed suit. The scheme has since been amended, although the Social Security number requirement has been retained in virtually identical form. See Deficit Reduction Act of 1984, Pub. L. 98-369, § 2651(a), 98 Stat. 1147. Roy and Miller both have Social Security numbers. They also obtained a Social Security number for their 5-year-old daughter Renee at some time prior to the present dispute. “[Q.] Mr. Roy, could you explain why obtaining a Social Security Number for Little Bird of the Snow would be contrary to your religious beliefs as a native Abenaki? “A. Yes. Because we felt that this number would be used to rob her of her ability to have greater power in that this number is a unique number. It serves unique purposes. It’s applied to her and only her; and being applied to her, that’s what offends us, and we try to keep her person unique, and we try to keep her spirit unique, and we’re scared that if we were to use this number, she would lose control of that and she would have no ability to protect herself from any evil that that number might be used against her.” App. 85. They also raise a statutory argument — that the Government’s denial of benefits to them constitutes illegal discrimination on the basis of religion or national origin. See 42 U. S. C. §2000d; 7 U. S. C. §2011. We find these claims to be without merit. The Food Stamp program restrictions that appellees challenge contain restrictions virtually identical to those in the AFDC program quoted in the text. See 7 U. S. C. § 2025(e). Roy’s religious views may not accept this distinction between individual and governmental conduct. See, e. g., n. 3, supra. It is clear, however, that the Free Exercise Clause, and the Constitution generally, recognize such a distinction; for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference. This issue is clearly not moot in light of our discussion in Part II, contrary to the suggestion of the two concurrences. Justice Stevens asserts that “there is nothing in the record to suggest that the Government will not pay the benefits in dispute as soon as the District Court’s injunction against the use of the number has been vacated.” Post, at 723. To my mind, this statement, while true, fundamentally misperceives the nature of appellees’ suit. Appellees do not seek to have the Government “pay the benefits in dispute as soon as the District Court’s injunction against use of the number has been vacated.” Such payment would entail use of Little Bird of the Snow’s Social Security number, use that appellees filed suit to prevent. Justice Blackmun similarly believes that on remand “it is possible that the Government, in a welcome display of reasonableness, will decide that since it already has a Social Security number for Little Bird of the Snow, it will not insist that appellees resupply it.” Post, at 714-715. My reading of the record is that such an occurrence is not a mere “possibility.” Justice Stevens cites federal regulations that provide that the Government will assist households that, for some reason or other, are unable to furnish a Social Security number. See post, at 721-722. Moreover, the Government’s brief in this Court reports that “we are advised by the Social Security Administration that the agency itself assigns [Social Security numbers] to persons who are required by federal law to have one but decline to complete an application. If	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
MORTON, SECRETARY OF THE INTERIOR, et al. v. MANCARI et al. No. 73-362. Argued April 24, 1974 Decided June 17, 1974 BlackmuN, J., delivered the opinion for a unanimous Court. Harry R. Sachse argued the cause for appellants in No. 73-362. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Carlton R. Stoiber, and M. Patricia Schaffer. Harris D. Sherman argued the cause for appellant in No. 73-364. With him on the briefs was Stuart J. Land. Gene E. Franchini argued the cause and filed a brief for appellees in both cases. Together with No. 73-364, Amerind v. Mancari et al., also on appeal from the same court. Briefs of amici curiae urging reversal were filed by Theodore S. Hope, Jr., William C. Pelster, and Joseph E. Fortenberry for Montana Inter-Tribal Policy Board et al., and by Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund. Mr. Justice Blackmun delivered the opinion of the Court. The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, 48 Stat. 984, 25 U. S. C. § 461 et seq., accords an employment preference for qualified Indians in the Bureau of Indian Affairs (BIA or Bureau). Appellees, non-Indian BIA employees, challenged this preference as contrary to the anti-discrimination provisions of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. § 2000e et seq. (1970 ed., Supp. II), and as violative of the Due Process Clause of the Fifth Amendment. A three-judge Federal District Court concluded that the Indian preference under the 1934 Act was impliedly repealed by the 1972 Act. 359 F. Supp. 585 (NM 1973). We noted probable jurisdiction in order to examine the statutory and constitutional validity of this longstanding Indian preference. 414 U. S. 1142 (1974); 415 U. S. 946 (1974). I Section 12 of the Indian Reorganization Act, 48 Stat. 986,25 U. S. C. § 472, provides: “The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office,[] in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.” In June 1972, pursuant to this provision, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, issued a directive (Personnel Management Letter No. 72-12) (App. 52) stating that the BIA’s policy would be to grant a preference to qualified Indians not only, as before, in the initial hiring stage, but also in the situation where an Indian and a non-Indian, both already employed by the BIA, were competing for a promotion within the Bureau. The record indicates that this policy was implemented immediately. Shortly thereafter, appellees, who are non-Indian employees of the BIA at Albuquerque, instituted this class action, on behalf of themselves and other non-Indian employees similarly situated, in the United States District Court for the District of New Mexico, claiming that the “so-called 'Indian Preference Statutes,’ ” App. 15, were repealed by the 1972 Equal Employment Opportunity Act and deprived them of rights to\property without due process of law, in violation of the Fifth Amendment. Named as defendants were the Secretary of the Interior, the Commissioner of Indian Affairs, and the BIA Directors for the Albuquerque and Navajo Area Offices. Appellees claimed that implementation and enforcement of the new preference policy “placed and will continue to place [appellees] at a distinct disadvantage in competing for promotion and training programs with Indian employees, all of which has and will continue to subject the [appellees] to discrimination and deny them equal employment opportunity.” App. 16. A three-judge court was convened pursuant to 28 U. S. C. § 2282 because the complaint sought to enjoin, as unconstitutional, the enforcement of a federal statute. Appellant Amerind, a nonprofit organization representing Indian employees of the BIA, moved to intervene in support of the preference; this motion was granted by the District Court and Amerind thereafter participated at all stages of the litigation. After a short trial focusing primarily on how the new policy, in fact, has been implemented, the District Court concluded that the Indian preference was implicitly repealed by § 11 of the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. Ill, 42 U. S. C. § 2000e-16 (a) (1970 ed., Supp. II), proscribing discrimination in most federal employment on the basis of race. Having found that Congress repealed the preference, it was unnecessary for the District Court to pass on its constitutionality. The court permanently enjoined appellants “from implementing any policy in the Bureau of Indian Affairs which would hire, promote, or reassign any person in preference to another solely for the reason that such person is an Indian.” The execution and enforcement of the judgment of the District Court was stayed by Mr. Justice Marshall on August 16, 1973, pending the disposition of this appeal. II The federal policy of according some hiring preference to Indians in the Indian service dates at least as far back as 1834. Since that time, Congress repeatedly has enacted various preferences of the general type here at issue. The purpose of these preferences, as variously expressed in the legislative history, has been to give Indians a greater participation in their own self-government; to further the Government’s trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life. The preference directly at issue here was enacted as an important part of the sweeping Indian Reorganization Act of 1934. The overriding purpose of that particular Act was to establish machinery whereby Indian tribes-would be able to assume a greater degree of self-government, both politically and economically. Congress was seeking to modify the then-existing situation whereby the primarily non-Indian-staffed BIA had plenary control, for all practical purposes, over the lives and destinies of the federally recognized Indian tribes. Initial congressional proposals would have diminished substantially the role of the BIA by turning over to federally chartered self-governing Indian communities many of the functions normally performed by the Bureau. Committee sentiment, however, ran against such a radical change in the role of the BIA. The solution ultimately adopted was to strengthen tribal government while continuing the active role of the BIA, with the understanding that the Bureau would be more responsive to the interests of the people it was created to serve. One of the primary means by which self-government would be fostered and the Bureau made more responsive was to increase the participation of tribal Indians in the BIA operations. In order to achieve this end, it was recognized that some kind of preference and exemption from otherwise prevailing civil service requirements was necessary. Congressman Howard, the House sponsor, expressed the need for the preference: “The Indians have not only been thus deprived of civic rights and powers, but they have been largely deprived of the opportunity to enter the more important positions in the service of the very bureau which manages their affairs. Theoretically, the Indians have the right to qualify for the Federal civil service. In actual practice there has been no adequate program of training to qualify Indians to compete in these examinations, especially for technical and higher positions; and even if there were such training, the Indians would have to compete under existing law, on equal terms with multitudes of white applicants.... The various services on the Indian reservations are actually local rather than Federal services and are comparable to local municipal and county services, since they are dealing with purely local Indian problems. It should be possible for Indians with the requisite vocational and professional training to enter the service of their own people without the necessity of competing with white applicants for these positions. This bill permits them to do so.” 78 Cong. Rec. 11729 (1934). Congress was well aware that the proposed preference would result in employment disadvantages within the BIA for non-Indians. Not only was this displacement unavoidable if room were to be made for Indians, but it was explicitly determined that gradual replacement of non-Indians with Indians within the Bureau was a desirable feature of the entire program for self-government. Since 1934, the BIA has implemented the preference with a fair degree of success. The percentage of Indians employed in the Bureau rose from 34% in 1934 to 57% in 1972. This reversed the former downward trend, see n. 16, supra, and was due, clearly, to the presence of the 1934 Act. The Commissioner’s extension of the preference in 1972 to promotions within the BIA was designed to bring more Indians into positions of responsibility and, in that regard, appears to be a logical extension of the congressional intent. See Freeman v. Morton, 162 U. S. App. D. C. 358, 499 F. 2d 494 (1974), and n. 5, supra. It is against this background that we encounter the first issue in the present case: whether the Indian preference was repealed by the Equal Employment Opportunity Act of 1972. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, was the first major piece of federal legislation prohibiting discrimination in private employment on the basis of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a). Significantly, §§ 701 (b) and 703 (i) of that Act explicitly exempted from its coverage the preferential employment of Indians by Indian tribes or by industries located on or near Indian reservations. 42 U. S. C. §§ 2000e (b) and 2000e-2 (i). This exemption reveals a clear congressional recognition, within the framework of Title VII, of the unique legal status of tribal and reservation-based activities. The Senate sponsor, Senator Humphrey, stated on the floor by way of explanation: “This exemption is consistent with the Federal Government’s policy of encouraging Indian employment and with the special legal position of Indians.” 110 Cong. Rec. 12723 (1964). The 1964 Act did not specifically outlaw employment discrimination by the Federal Government. Yet the mechanism for enforcing longstanding Executive Orders forbidding Government discrimination had proved ineffective for the most part. In order to remedy this, Congress, by the 1972 Act, amended the 1964 Act and proscribed discrimination in most areas of federal employment. See n. 6, supra. In general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government. As stated in the House Report: “To correct this entrenched discrimination in the Federal service, it is necessary to insure the effective application of uniform, fair and strongly enforced policies. The present law and the proposed statute do not permit industry and labor organizations to be the judges of their own conduct in the area of employment discrimination. There is no reason why government agencies should not be treated similarly... H. R. Rep. No. 92-238, on H. R. 1746, pp. 2^-25 (1971). Nowhere in the legislative history of the 1972 Act, however, is there any mention of Indian preference. Appellees assert, and the District Court held, that since the 1972 Act proscribed racial discrimination in Government employment, the Act necessarily, albeit sub silentio, repealed the provision of the 1934 Act that called for the preference in the BIA of one racial group, Indians, over non-Indians: “When a conflict such as in this case, is present, the most recent law or Act should apply and the conflicting Preferences passed some 39 years earlier should be impliedly repealed.” Brief for Appellees 7. We disagree. For several reasons we conclude that Congress did not intend to repeal the Indian preference and that the District Court erred in holding that it was repealed. First: There are the above-mentioned affirmative provisions in the 1964 Act excluding coverage of tribal employment and of preferential treatment by a business or enterprise on or near a reservation. 42 U. S. C. §§ 2000e (b) and 2000e-2 (i). See n. 19, supra. These 1964 exemptions as to private employment indicate Congress’ recognition of the longstanding federal policy of providing a unique legal status to Indians in matters concerning tribal or “on or near” reservation employment. The exemptions reveal a clear congressional sentiment that an Indian preference in the narrow context of tribal or reservation-related employment did not constitute racial discrimination of the type otherwise proscribed. In extending the general anti-discrimination machinery to federal employment in 1972, Congress in no way modified these private employment preferences built into the 1964 Act, and they are still in effect. It would be anomalous to conclude that Congress intended to eliminate the longstanding statutory preferences in BIA employment, as being racially discriminatory, at the very same time it was reaffirming the right of tribal and reservation-related private employers to provide Indian preference. Appellees’ assertion that Congress implicitly repealed the preference as racially discriminatory, while retaining the 1964 preferences, attributes to Congress irrationality and arbitrariness, an attribution we do not share. ■ Second: Three months after Congress passed the 1972 amendments, it enacted two new Indian preference laws. These were part of the Education Amendments of 1972, 86 Stat. 235, 20 U. S. C. §§ 887c (a) and (d), and § 1119a (1970 ed., Supp. II). The new laws explicitly require that Indians be given preference in Government programs for training teachers of Indian children. It is improbable, to say the least, that the same Congress which affirmatively approved and enacted these additional and similar Indian preferences was, at the same time, con-deinning the BIA preference as racially discriminatory. In the total absence of any manifestation of supportive intent, we are loathe to imply this improbable result. Third: Indian preferences, for many years, have been treated as exceptions to Executive Orders forbidding Government employment discrimination. The 1972 extension of the Civil Rights Act to Government employment is in large part merely a codification of prior anti-discrimination Executive Orders that had proved ineffective because of inadequate enforcement machinery. There certainly was no indication that the substantive proscription against discrimination was intended to be any broader than that which previously existed. By codifying the existing anti-discrimination provisions, and by providing enforcement machinery for them, there is no reason to presume that Congress affirmatively intended to erase the preferences that previously had coexisted with broad anti-discrimination provisions in Executive Orders. Fourth: Appellees encounter head-on the “cardinal rule... that repeals by implication are not favored.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936) ; Wood v. United States, 16 Pet. 342-343, 363 (1842); Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U. S. 186, 193 (1968). They and the District Court read the congressional silence as effectuating a repeal by implication. There is nothing in the legislative history, however, that indicates affirmatively any congressional intent to repeal the 1934 preference. Indeed, as explained above, there ■is ample independent evidence that the legislative intent was to the contrary. This is a prototypical case where an adjudication of repeal by implication is not appropriate. The preference is a longstanding, important component of the Government’s Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem. Any perceived conflict is thus more apparent than real. In the absence of some affirmative showing of an intention to repeal, the only-permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Georgia v. Pennsylvania R. Co., 324 U. S. 439, 456—457 (1945). Clearly, this is not the case'here..A provision aimed at furthering Indian self-government by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians. Furthermore, the- Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U. S. 753, 758 (1961); Rodgers v. United States, 185 U. S. 83, 87-89 (1902). The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible.... The intention of the legislature to repeal ‘must be clear and manifest.’ ” United States v. Borden Co., 308 U. S. 188, 198 (1939). In light of the factors indicating no repeal, we simply cannot conclude that Congress consciously abandoned its policy of furthering Indian self-government when it passed the 1972 amendments. We therefore hold that the District Court erred in ruling that the Indian preference was repealed by the 1972 Act. IV We still must decide whether, as the appellees contend, the preference constitutes invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497 (1954). The District Court, while pretermitting this issue, said: “[W]e could well hold that the statute must fail on constitutional grounds.” 359 F. Supp., at 591. Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a “guardian-ward” status, to legislate on behalf of-federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, § 8, cl. 3, provides Congress with the power to “regulate Commerce... with the Indian Tribes,” and thus, to this extent, singles Indians out as a proper subject for separate legislation. Article II, § 2, cl. 2, gives the President the power, by and with the advice and consent of the Senate, to make treaties. This has often been the source of the Government's power to deal with the Indian tribes. The Court has described the origin and nature of the special relationship: “In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic....” Board of County Comm’rs v. Seber, 318 U. S. 705, 715 (1943). See also United States v. Kagama, 118 U. S. 375, 383-384 (1886). Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U. S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. See Simmons v. Eagle Seelatsee, 244 F. Supp. 808, 814 n. 13 (ED Wash. 1965), aff’d, 384 U. S. 209 (1966). It is in this historical and legal context that the constitutional validity of the Indian preference is to be determined. As discussed above, Congress in 1934 determined that proper fulfillment of its trust required turning over to the Indians a greater control of their own destinies. The overly paternalistic approach of prior years had proved both exploitative and destructive of Indian interests. Congress was united in the belief that institutional changes were required. An important part of the Indian Reorganization Act was the preference provision here at issue. Contrary to the characterization made by appellees, this preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be “an Inhabitant of that State for which he shall be chosen/’ Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians. The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. See n. 24, supra. In the sense that there is no other group of people favored in this manner, the legal status of the BIA is truly mi generis. Furthermore, the preference applies only to employment in the Indian service. The preference does not cover any other Government agency or activity, and we need not consider the obviously more difficult question that would be presented by a blanket exemption for Indians from all civil service examinations. Here, the preference is reasonably and directly related to a legitimate, nonracially based goal. This is the principal characteristic that generally is absent from proscribed forms of racial discrimination. On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment. See, e. g., Board of County Comm’rs v. Seber, 318 U. S. 705 (1943) (federally granted tax immunity); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973) (same); Simmons v. Eagle Seelatsee, 384 U. S. 209 (1966), aff’g 244 F. Supp. 808 (ED Wash. 1965) (statutory definition of tribal membership, with resulting interest in trust estate); Williams v. Lee, 358 U. S. 217 (1959) (tribal courts and their jurisdiction over reservation affairs). Cf. Morton v. Ruiz, 415 U. S. 199 (1974) (federal welfare benefits for Indians “on or near” reservations). This unique legal status is of long standing, see Cherokee Nation v. Georgia, 5 Pet. 1 (1831); Worcester v. Georgia, 6 Pet. 515 (1832), and its sources are diverse. See generally U. S. Dept, of Interior, Federal Indian Law (1958); Comment, The Indian Battle for Self-Determination, 58 Calif. L. Rev. 445 (1970). As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed. Here, where the preference is reasonable and rationally designed to further Indian self-government, we cannot say that Congress’ classification violates due process. The judgment of the District Court is reversed and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. The Indian Health Service was transferred in 1954 from the Department of the Interior to the Department of Health, Education, and Welfare. Act of Aug. 5, 1954, § 1, 68 Stat. 674, 42 U. S. C. § 2001. Presumably, despite this transfer, the reference in § 12 to the “Indian Office” has continuing application to the Indian Health Service. See 5 CFR § 213.3116 (b) (8). There are earlier and more narrowly drawn Indian preference statutes. 25 U. S. C. §§ 44, 45, 46, 47, and 274. For all practical purposes, these were replaced by the broader preference of § 12. Although not directly challenged in this litigation, these statutes, under the District Court’s decision, clearly would be invalidated. The directive stated: “The Secretary of the Interior announced today [June 26, 1972] he has approved the Bureau’s policy to extend Indian Preference to training and to filling vacancies by original appointment, reinstatement and promotions. The new policy was discussed with the National President of the National Federation of Federal Employees under National Consultation Rights NFFE has with the Department. Secretary Morton and I jointly stress that careful attention must be given to protecting the Rights of non-Indian employees. The new policy provides as follows: Where two or more candidates who meet the established qualification requirements are available for filling a vacancy. If one of them is an Indian, he shall be given preference in filling the vacancy. This new policy is effective immediately, and is incorporated into all existing programs such as the Promotion Program. Revised Manual releases will be issued promptly for review and comment. You should take immediate steps to notify all employees and recognized unions of this policy.” App. 52-53. The appellees state that none of them is employed on or near an Indian reservation. Brief for Appellees 8. The District Court described the appellees as “teachers... or programmers, or in computer work.” 359 F. Supp. 585, 587 (NM 1973). The specific question whether § 12 of the 1934 Act authorizes a preference in promotion as well as in initial hiring was not decided by the District Court' and is not now before us. We express no opinion on this issue. See Freeman v. Morton, 162 U. S. App. D. C. 358, 499 F. 2d 494 (1974). See also Mescalero Apache Tribe v. Mickel, 432 F. 2d 956 (CA10 1970), cert. denied, 401 U. S. 981 (1971) (preference held inapplicable to reduction in force). Section 2000e-16 (a) reads: “All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonap-propriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.” Act of June 30, 1834, § 9, 4 Stat: 737, 25 U. S. C. §45: “[I]n all cases of the appointments of interpreters or other persons employed for the benefit of the Indians, a preference shall be given to persons of Indian descent, if such can be found, who are properly qualified for the execution of the duties.” Act of May 17, 1882, § 6, 22 Stat. 88, and Act of July 4, 1884, § 6, 23 Stat. 97, 25 U. S. C. § 46 (employment of clerical, mechanical, and other help on reservations and about agencies); Act of Aug. 15, 1894, § 10, 28 Stat. 313, 25 U. S. C. § 44 (employment of herders, teamsters, and laborers, “and where practicable in all other employments” in the Indian service); Act of June 7, 1897, § 1, 30 Stat. 83, 25 U. S. C. § 274 (employment as matrons, farmers, and industrial teachers in Indian schools); Act of June 25, 1910, § 23, 36 Stat. 861, 25 U. S. C„ § 47 (general preference as to Indian labor and products of Indian industry). Senator Wheeler, cosponsor of the 1934 Act, explained the need for a preference as follows: “We are setting up in the United States a civil service rule which prevents Indians from managing their own property. It is an entirely different service from anything else in the United States, because these Indians own this property. It belongs to them. What the policy of this Government is and what it should be is to teach these Indians to manage their own business and control their own funds and to administer their own property, and the civil service has worked very poorly so far as the Indian Service is concerned....” Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934). A letter, contained in the House Report to the 1934 Act, from President F. D. Roosevelt to Congressman Howard states: “We can and should, without further delay, extend to the Indian the fundamental rights of political liberty and local self-government and the opportunities of education and	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 7 ]	sc_adminaction
RAMAH NAVAJO SCHOOL BOARD, INC., et al. v. BUREAU OF REVENUE OF NEW MEXICO No. 80-2162. Argued April 28, 1982 Decided July 2, 1982 Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Blackmun, Powell, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which White and Stevens, JJ., joined, post, p. 847. Michael P. Gross argued the cause for appellants. With him on the briefs were Carl Bryant Rogers and Neal A. Jackson. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Dinkins, Elinor Hadley Stillman, Edward J. Shawaker, and Maria A. Iizuka. Jan Unna, Special Assistant Attorney General of New Mexico, argued the cause for appellee. With him on the brief were Jeff Bingaman, Attorney General, and Gerald B. Richardson, Assistant Attorney General. Briefs of amici curiae urging reversal were filed by George P. Vlassis and Katherine Ott for the Navajo Tribe of Indians; and by Richard W. Hughes for the Pueblo of Santa Ana. Helena S. Maclay and Deirdre Boggs, Special Assistant Attorneys General of Montana, Leland T. Johnson, Assistant Attorney General of Washington, Warren Spannaus, Attorney General of Minnesota, Mark V. Meierhenry, Attorney General of South Dakota, and Richard H. Bryan, Attorney General of Nevada, filed a brief for the State of Montana et al. as amici curiae urging affirmance. Briefs of amici curiae were filed by George Deukmejian, Attorney General, and Neal J. Gobar, Deputy Attorney General, for the State of California; and by Arthur Lazarus, Jr., for the Association of American Indian Affairs, Inc. Justice Marshall delivered the opinion of the Court. In this case, we address the question whether federal law pre-empts a state tax imposed on the gross receipts that a non-Indian construction company receives from a tribal school board for the construction of a school for Indian children on the reservation. The New Mexico Court of Appeals held that the gross receipts tax imposed by the State of New Mexico was permissible. Because the decision below is inconsistent with White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980) (White Mountain), we reverse. I Approximately 2,000 members of the Ramah Navajo Chapter of the Navajo Indian Tribe live on tribal trust and allotment lands located in west central New Mexico. Ramah Navajo children attended a small public high school near the reservation until the State closed this facility in 1968. Because there were no other public high schools reasonably close to the reservation, the Ramah Navajo children were forced either to abandon their high school education or to attend federal Indian boarding schools far from the reservation. In 1970, the Ramah Navajo Chapter exercised its authority under Navajo Tribal Code, Title 10, §51 (1969), and established its own school board in order to remedy this situation. Appellant Ramah Navajo School Board, Inc. (the Board), was organized as a nonprofit corporation to be operated exclusively by members of the Ramah Navajo Chapter. The Board is a Navajo “tribal organization” within the meaning of 25 U. S. C. §450b(c), 88 Stat. 2204. With funds provided by the federal Bureau of Indian Affairs (BIA) and the Navajo Indian Tribe, the Board operated a school in the abandoned public school facility, thus creating the first independent Indian school in modern times. In 1972, the Board successfully solicited from Congress funds for the design of new school facilities. Pub. L. 92-369, 86 Stat. 510. The Board then contracted with the BIA for the design of the new school and hired an architect. In 1974, the Board contracted with the BIA for the actual construction of the new school to be built on reservation land. Funding for the construction of this facility was provided by a series of congressional appropriations specifically earmarked for this purpose. The contract specified that the Board was the design and building contractor for the project, but that the Board could subcontract the actual construction work to third parties. The contract further provided that any subcontracting agreement would have to include certain clauses governing pricing, wages, bonding, and the like, and that it must be approved by the BIA. The Board then solicited bids from area building contractors for the construction of the school, and received bids from two non-Indian firms. Each firm included the state gross receipts tax as a cost of construction in their bids, although the tax was not itemized separately. Appellant Lembke Construction Co. (Lembke) was the low bidder and was awarded the contract. The contract between the Board and Lembke provides that Lembke is to pay all “taxes required by law.” Lembke began construction of the school facilities in 1974 and continued this work for over five years. During that time, Lembke paid the gross receipts tax and, pursuant to standard industry practice, was reimbursed by the Board for the full amount paid. Before the second contract between Lembke and the Board was executed in 1977, a clause was inserted into the contract recognizing that the Board could litigate the validity of this tax and was entitled to any refund. Both Lembke and the Board protested the imposition of the gross receipts tax. In 1978, after exhausting administrative remedies, they filed this refund action against appellee New Mexico Bureau of Revenue in the New Mexico District Court. At the time of trial, the parties stipulated that the Board had reimbursed Lembke for tax payments of $232,264.38 and that the Board would receive any refund that might be awarded. The trial court entered judgment for the State Bureau of Revenue. After noting that the “legal incidence” of the tax-fell on the non-Indian construction firm, the court rejected appellants’ arguments that the tax was pre-empted by comprehensive federal regulation and that it imposed an impermissible burden on tribal sovereignty. The Court of Appeals for the State of New Mexico affirmed. 95 N. M. 708, 625 P. 2d 1225 (1980). Although acknowledging that the economic burden of the tax fell on the Board, the Court of Appeals concluded that the tax was not preempted by federal law and that it did not unlawfully burden tribal sovereignty. The Board filed a petition for rehearing in light of this Court’s intervening decisions in White Mountain, supra, and Central Machinery Co. v. Arizona State Tax Comm’n, 448 U. S. 160 (1980). The Court of Appeals denied the petition, stating only that this case did not involve either “a comprehensive or pervasive scheme of federal regulation” or “federal regulation similar to the Indian trader statutes.” App. to Juris. Statement 36. After initially granting discretionary review, the New Mexico Supreme Court quashed the writ as improvidently granted. 96 N. M. 17, 627 P. 2d 412 (1981). We noted probable jurisdiction. 454 U. S. 1079 (1981). II In recent years, this Court has often confronted the difficult problem of reconciling “the plenary power of the States over residents within their borders with the semi-autonomous status of Indians living on tribal reservations.” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 165 (1973). Although there is no definitive formula for resolving the question whether a State may exercise its authority over tribal members or reservation activities, we have recently identified the relevant federal, tribal, and state interests to be considered in determining whether a particular exercise of state authority violates federal law. See White Mountain, 448 U. S., at 141-145. A In White Mountain, we recognized that the federal and tribal interests arise from the broad power of Congress to regulate tribal affairs under the Indian Commerce Clause, Art. I, § 8, cl. 3, and from the semi-autonomous status of Indian tribes. 448 U. S., at 142. These interests tend to erect two “independent but related” barriers to the exercise of state authority over commercial activity on an Indian reservation: state authority may be pre-empted by federal law, or it may interfere with the tribe’s ability to exercise its sovereign functions. Ibid, (citing, inter alia, Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965); McClanahan v. Arizona State Tax Comm’n, supra; and Williams v. Lee, 358 U. S. 217 (1959)). As we explained in White Mountain: “The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important ‘backdrop,’ . . . against which vague or ambiguous federal enactments must always be measured.” 448 U. S., at 143 (quoting McClanahan v. Arizona State Tax Comm’n, supra, at 172). The State’s interest in exercising its regulatory authority over the activity in question must be examined and given appropriate weight. Pre-emption analysis in this area is not controlled by “mechanical or absolute conceptions of state or tribal sovereignty”; it requires a particularized examination of the relevant state, federal, and tribal interests. 448 U. S., at 145. The question whether federal law, which reflects the related federal and tribal interests, pre-empts the State’s exercise of its regulatory authority is not controlled by standards of pre-emption developed in other areas. Id., at 143-144. Instead, the traditional notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts promoting tribal independence and economic development, inform the pre-emption analysis that governs this inquiry. See id., at 143, and n. 10. Relevant federal statutes and treaties must be examined in light of “the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence.” Id., at 144-145. As a result, ambiguities in federal law should be construed generously, and federal pre-emption is not limited to those situations where Congress has explicitly announced an intention to pre-empt state activity. Id., at 143-144, 150-151. In White Mountain, we applied these principles and held that federal law pre-empted application of the state motor carrier license and use fuel taxes to a non-Indian logging company’s activity on tribal land. We found the federal regulatory scheme for harvesting Indian timber to be so pervasive that it precluded the imposition of additional burdens by the relevant state taxes. Id., at 148. The Secretary of the Interior (Secretary) had promulgated detailed regulations for developing “‘Indian forests by the Indian people for the purpose of promoting self-sustaining communities.’” Id., at 147 (quoting 25 CFR § 141.3(a)(3) (1979)). Under these regulations, the BIA was involved in virtually every aspect of the production and marketing of Indian timber. 448 U. S., at 145-148. In particular, the Secretary and the BIA extensively regulated the contractual relationship between the Indians and the non-Indians working on the reservation: they established the bidding procedure, set mandatory terms to be included in every contract, and required that all contracts be approved by the Secretary. Id., at 147. We found that the state taxes in question would “threaten the overriding federal objective of guaranteeing Indians that they will ‘receive . . . the benefit of whatever profit [the forest] is capable of yielding. .. .’ ” Id., at 149 (quoting 25 CFR § 141.3(a)(3) (1979)). We concluded that the imposition of state taxes would also undermine the Secretary’s ability to carry out his obligations to set fees and rates for the harvesting and sale of the timber, and it would impede the “Tribe’s ability to comply with the sustained-yield management policies imposed by federal law.” 448 U. S., at 149-150. Balanced against this intrusion into the federal scheme, the State asserted only “a general desire to raise revenue” as its justification for imposing the taxes. Id., at 150. In this context, this interest is insufficient to justify the State’s intrusion into a sphere so heavily regulated by the Federal Government. Ibid. B This case is indistinguishable in all relevant respects from White Mountain. Federal regulation of the construction and financing of Indian educational institutions is both comprehensive and pervasive. The Federal Government’s concern with the education of Indian children can be traced back to the first treaties between the United States and the Navajo Tribe. Since that time, Congress has enacted numerous statutes empowering the BIA to provide for Indian education both on and off the reservation. See, e. g., Snyder Act, 42 Stat. 208 (1921), 25 U. S. C. §13; Johnson-O’Malley Act, 48 Stat. 596 (1934), 25 U. S. C. §452 et seq.; Navajo-Hopi Rehabilitation Act, 64 Stat. 44 (1950), 25 U. S. C. §631 et seq.; Indian Self-Determination and Education Assistance Act, 88 Stat. 2203 (1975), 25 U. S. C. §450 et seq. (Self-Determination Act). Although the early focus of the federal efforts in this area concentrated on providing federal or state educational facilities for Indian children, in the early 1970’s the federal policy shifted toward encouraging the development of Indian-controlled institutions on the reservation. See 6 Weekly Comp, of Pres. Doc. 894, 899-900 (1970) (Message of President Nixon). This federal policy has been codified in the Indian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. §1451 et seq., and most notably in the Self-Determination Act. The Self-Determination Act declares that a “major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being.” 88 Stat. 2203, as set forth in 25 U. S. C. § 450a(c). In achieving this goal, Congress expressly recognized that “parental and community control of the educational process is of crucial importance to the Indian people.” 88 Stat. 2203, as set forth in 25 U. S. C. § 450(b)(3). Section 450k empowers the Secretary to promulgate regulations to accomplish the purposes of the Act. 88 Stat. 2212, 25 U. S. C. §450k. Pursuant to this authority, the Secretary has promulgated detailed and comprehensive regulations respecting “school construction for previously private schools now controlled and operated by tribes or tribally approved Indian organizations.” 25 CFR §274.1 (1981). Under these regulations, the BIA has wide-ranging authority to monitor and review the subcontracting agreements between the Indian organization, which is viewed as the ' general contractor, and the non-Indian firm that actually constructs the facilities. See 25 CFR §274.2 (1981). Specifically, the BIA must conduct preliminary on-site inspections, and prepare cost estimates for the project in cooperation with the tribal organization. 25 CFR § 274.22 (1981). The Board must approve any architectural or engineering agreements executed in connection with the project. 25 CFR § 274.32(c) (1981). In addition, the regulations empower the BIA to require that all subcontracting agreements contain certain terms, ranging from clauses relating to bonding and pay scales, 41 CFR §14H-70.632 (1981), to preferential treatment for Indian workers. 25 CFR §274.38 (1981). Finally, to ensure that the Tribe is fulfilling its statutory obligations, the regulations require the tribal organization to maintain records for the Secretary’s inspection. 25 CFR §274.41 (1981). This detailed regulatory scheme governing the construction of autonomous Indian educational facilities is at least as comprehensive as the federal scheme found to be pre-emptive in White Mountain. The direction and supervision provided by the Federal Government for the construction of Indian schools leave no room for the additional burden sought to be imposed by the State through its taxation of the gross receipts paid to Lembke by the Board. This burden, although nominally falling on the non-Indian contractor, necessarily impedes the clearly expressed federal interest in promoting the “quality and quantity” of educational opportunities for Indians by depleting the funds available for the construction of Indian schools. The Bureau of Revenue argues that imposition of the state tax is not pre-empted because the federal statutes and regulations do not specifically express the intention to pre-empt this exercise of state authority. This argument is clearly foreclosed by our precedents. In White Mountain we flatly rejected a similar argument. 448 U. S., at 150-151 (citing Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965); Williams v. Lee, 358 U. S. 217 (1959); and Kennerly v. District Court of Montana, 400 U. S. 423 (1971)). There is nothing unique in the nature of a gross receipts tax or in the federal laws governing the development of tribal self-sufficiency in the area of education that requires a different analysis. In this case, the State does not seek to assess its tax in return for the governmental functions it provides to those who must bear the burden of paying this tax. Having declined to take any responsibility for the education of these Indian children, the State is precluded from imposing an additional burden on the comprehensive federal scheme intended to provide this education — a scheme which has “left the State with no duties or responsibilities.” Warren Trading Post Co. v. Arizona Tax Comm’n, supra, at 691. Nor has the State asserted any specific, legitimate regulatory interest to justify the imposition of its gross receipts tax. The only arguably specific interest advanced by the State is that it provides services to Lembke for its activities off the reservation. This interest, however, is not a legitimate justification for a tax whose ultimate burden falls on the tribal organization. Furthermore, although the State may confer substantial benefits on Lembke as a state contractor, we fail to see how these benefits can justify a tax imposed on the construction of school facilities on tribal lands pursuant to a contract between the tribal organization and the non-Indian contracting firm. The New Mexico gross receipts tax is intended to compensate the State for granting “the privilege of engaging in business.” N. M. Stat. Ann. §§ 7 — 9—3(F) and 7-9-4(A) (1980). New Mexico has not explained the source of its power to levy such a tax in this case where the “privilege of doing business” on an Indian reservation is exclusively bestowed by the Federal Government. The State’s ultimate justification for imposing this tax amounts to nothing more than a general desire to increase revenues. This purpose, as we held in White Mountain, 448 U. S., at 150, is insufficient to justify the additional burdens imposed by the tax on the comprehensive federal scheme regulating the creation and maintenance of educational opportunities for Indian children and on the express federal policy of encouraging Indian self-sufficiency in the area of education. This regulatory scheme precludes any state tax that “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941). C The Solicitor General, in an amicus brief filed on behalf of the United States, suggests that we modify our pre-emption analysis and rely on the dormant Indian Commerce Clause, Art. I, § 8, cl. 3, to hold that on-reservation activities involving a resident tribe are presumptively beyond the reach of state law even in the absence of comprehensive federal regulation, thus placing the burden on the State to demonstrate that its intrusion is either condoned by Congress or justified by a compelling need to protect legitimate, specified state interests other than the generalized desire to collect revenue. He argues that adopting this approach is preferable for several reasons: it would provide guidance to the state courts addressing these issues, thus reducing the need for our case-by-case review of these decisions; it would avoid the tension created by focusing on the pervasiveness of federal regulation as a principal barrier to state assertions of authority when the primary federal goal is to encourage tribal self-determination and self-government; and it would place a higher burden on the State to articulate clearly its particularized interests in taxing the transaction and to demonstrate the services it provides in assisting the taxed transaction. We do not believe it necessary to adopt this new approach — the existing pre-emption analysis governing these cases is sufficiently sensitive to many of the concerns expressed by the Solicitor General. Although clearer rules and presumptions promote the interest in simplifying litigation, our precedents announcing the scope of pre-emption analysis in this area provide sufficient guidance to state courts and also allow for more flexible consideration of the federal, state, and tribal interests at issue. We have consistently admonished that federal statutes and regulations relating to tribes and tribal activities must be “construed generously in order to comport with . . . traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence.” White Mountain, supra, at 144; see also McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 174-175, and n. 13; Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S., at 690-691. This guiding principle helps relieve the tension between emphasizing the pervasiveness of federal regulation and the federal policy of encouraging Indian self-determination. Although we must admit our disappointment that the courts below apparently gave short shrift to this principle and to our precedents in this area, we cannot and do not presume that state courts will not follow both the letter and the spirit of our decisions in the future. HH HH HH In sum, the comprehensive federal regulatory scheme and the express federal policy of encouraging tribal self-sufficiency in the area of education preclude the imposition of the state gross receipts tax in this case. Accordingly, the judgment of the New Mexico Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. On July 8, 1970, in his Message to the Congress on Indian Affairs, President Nixon referred specifically to these efforts of the Board to assume responsibility for the education of tribal children abandoned by the State as a “notable exampl[e]” of Indian self-determination. 6 Weekly-Comp. of Pres. Doc. 894, 899 (1970). See Pub. L. 93-245, 87 Stat. 1073 (1973) (amending Pub. L. 93-120, 87 Stat. 431 (1973) to specifically earmark funds appropriated there for the construction of the Ramah school facility); Pub. L. 93-404, 88 Stat. 810 (1974); Pub. L. 94-165, 89 Stat. 985 (1975); Pub. L. 95-74, 91 Stat. 293 (1977). Article VI of the 1868 Treaty between the United States and the Navajo Tribe, 15 Stat. 669, provides that “[i]n order to insure the civilization of the Indians entering into this treaty, the necessity of education is admitted.” Although these regulations did not become effective until several months after the BIA and the Board had executed the initial contracts, the Secretary and the BIA had applied similar requirements under the authority of the Johnson-O’Malley Act, 48 Stat. 596, 25 U. S. C. § 452 et seq. In any event, the two subsequent agreements between the BIA, the Board and Lembke, accounting for two-thirds of the total construction, were signed after the effective date of these regulations, which clearly authorize the BIA to monitor these construction agreements. Justice Rehnquist asserts that the comprehensive federal regulatory scheme outlined above “do[es] not regulate school construction, which is the activity taxed.” Post, at 851. The dissent fails to explain, however, how this fact distinguishes this case from White Mountain. In that case, we struck down Arizona’s use fuel tax and motor carrier license tax, not because of any federal interest in gasoline, licenses, or highways, but because the imposition of these state taxes on a non-Indian contractor doing work on the reservation was pre-empted by the “comprehensive regulation of the harvesting and sale of tribal timber.” 448 U. S., at 151. We find that New Mexico is similarly precluded from impeding the federal interest in the construction of autonomous Indian educational institutions by imposing its gross receipts tax on Lembke. Justice Rehnquist’s contention that the New Mexico tax is somehow compatible with this federal interest because such taxes “are as much a normal cost of school construction as the cost of cement and labor,” post, at 855, is also foreclosed by White Mountain. Surely, state use fuel and motor carrier license taxes are considered part of the cost of harvesting and marketing timber. Yet in White Mountain, we concluded that these taxes impeded the federal interest in “guaranteeing Indians that they will ‘receive . . . the benefit of whatever profit [the forest] is capable of yielding,’” 448 U. S., at 149, despite the dissent’s argument that the taxes amounted to less than 1% of the annual profits produced by the logging operation. Here, as in White Mountain, Justice Rehnquist continues to press this argument. Appellee would have us impute congressional awareness and approval of the state gross receipts tax from appropriations bills which earmarked funds for the construction of these facilities, see n. 2, supra. Brief for Appellee 21-22. Appellee strains to find this awareness and approval by arguing that the same architects who prepared the cost estimates and requests that the Board submitted to Congress also prepared the bid specifications pursuant to which Lembke submitted its bid. However, as we have indicated, the bid specifications only required prospective bidders to include “all taxes required by law,” and the submitted bids did not specify the gross receipts tax as a separate line item. Supra, at 835. Therefore, it is by no means clear, and the Board disputes the contention, that the Board ever intended to have these state taxes included in the construction costs of its school facilities. Furthermore, there is absolutely no indication that Congress was even made aware of the existence of these taxes when it appropriated funds for the construction of the Ramah Navajo school. In any event, as we have noted in a related context, courts should be wary of inferring congressional intent to alter the force of existing law from an appropriations Act. Cf. TVA v. Hill, 437 U. S. 153, 189-191 (1978). Of course, these statutes and regulations do not prevent the States from providing for the education of Indian children within their boundaries. Indeed, the Self-Determination Act specifically authorizes the Secretary to enter into contracts with any State willing to construct educational institutions for Indian children on or near the reservation. 88 Stat. 2214, 25 U. S. C. § 458. This case would be different if the State were actively seeking tax revenues for the purpose of constructing, or assisting in the effort to provide, adequate educational facilities for Ramah Navajo children. The Bureau of Revenue invites us to adopt the “legal incidence” test, under which the legal incidence and not the actual burden of the tax would control the pre-emption inquiry. Of course, in some contexts, the fact that the legal incidence of the tax falls on a non-Indian is significant. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 150-151 (1980); Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976). However, in White Mountain, 448 U. S., at 151, we found it significant that the economic burden of the asserted taxes would ultimately fall on the Tribe, even though the legal incidence of the tax was on the non-Indian logging company. Given the comprehensive federal regulatory scheme at issue here, we decline to allow the State to impose additional burdens on the significant federal interest in fostering Indian-run educational institutions, even if those burdens are imposed indirectly through a tax on a non-Indian contractor for work done on the reservation. In Central Machinery Co. v. Arizona State Tax Comm’n, 448 U. S. 160 (1980), we held that the Indian trader statutes, 19 Stat. 200, 25 U. S. C. §261 et seq., pre-empted the State's jurisdiction to tax the sale of farm machinery to the Indian Tribe, notwithstanding the substantial services that the State undoubtedly provided to the off-reservation activities of the non-Indian seller. Presumably, the state tax revenues derived from Lembke’s off-reservation business activities are adequate to reimburse the State for the services it provides to Lembke. We are similarly unpersuaded by the State’s argument that the significant services it provides to the Ramah Navajo Indians justify the imposition of this tax. The State does not suggest that these benefits are in any way related to the construction of schools on Indian land. Furthermore, the evidence introduced below by the State on this issue is far from clear. Although the State does provide services to the Ramah Navajo Indians, it receives federal funds for providing some of these services, and the State conceded at trial that it saves approximately $380,000 by not having to provide education for the Ramah Navajo children. App. 95, 105-106, 108.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
PICKERING v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205, WILL COUNTY. No. 510. Argued March 27, 1968. Decided June 3, 1968. John Ligtenberg argued the cause for appellant. With him on the briefs was Andrew J. Leahy. John F. Cirricione argued the cause and filed a brief for appellee. Milton I. Shadur filed a brief for the American Civil Liberties Union, Illinois Division, as amicus curiae, urging reversal. Mb. Justice Marshall delivered the opinion of the Court. Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant's dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and hence, under the relevant Illinois statute, Ill. Rev. Stat., c. 122, § 10-22.4 (1963), that “interests of the school require[d] [his dismissal].” Appellant’s claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board’s action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant’s letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overrode appellant’s First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. 36 Ill. 2d 568, 225 N. E. 2d 1 (1967). We noted probable jurisdiction of appellant’s claim that the Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments. 389 U. S. 925 (1967). For the reasons detailed below we agree that appellant’s rights to freedom of speech were violated and we reverse. I. In February of 1961 the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed and the schools were built with the money raised by the bond sales. In May of 1964 a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor (which we reproduce in an Appendix to this opinion) that resulted in his dismissal. Prior to the vote on the second tax increase proposal a variety of articles attributed to the District 205 Teachers’ Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district’s schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper. The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue. The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing the Board- charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these fines were made. The Illinois courts reviewed the proceedings solely to determine whether the Board’s findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant’s publication of the letter was “detrimental to the best interests of the schools.” Pickering’s claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools “which in the absence of such position he would have an undoubted right to engage in.” It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant’s dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. In any event, it clearly rejected Pickering’s claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position. II. To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967). “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of- how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, supra, at 605-606. At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. III. The Board contends that “the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.” Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made “with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not,” New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run. An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board’s position here can be taken to suggest that even comments on matters of public concern that are substantially correct, such as statements (1) — (4) of appellant’s letter, see Appendix, infra, may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it. We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools. However, the only way in which the Board could conclude, absent any evidence of the actual - effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant’s letter containing the statements that we have found to be false, see Appendix, infra) cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest. In addition, the fact that particular illustrations of the Board’s claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering’s letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written. More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant’s errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether under such circumstances a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them. What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. IV. The public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment — is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); St. Amant v. Thompson, 390 U. S. 727 (1968). Compare Linn v. United Plant Guard Workers, 383 U. S. 53 (1966). The same test has been applied to suits for invasion of privacy based on false statements where a “matter of public interest” is involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State’s power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times. This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U. S. 64 (1964); Wood v. Georgia, 370 U. S. 375 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district; attorney about the judges before whom he regularly appeared. While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be. In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant’s letter, see Appendix, infra, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion. /£ ¿§ §o ordered. Appellant also challenged the statutory standard on which the Board based his dismissal as vague and overbroad. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960). Because of our disposition of this case we do not reach appellant’s challenge to the statute on its face. We have set out in the Appendix our detailed analysis of the specific statements in appellant’s letter which the Board found to be false, together with our reasons for concluding that several of the statements were, contrary to the findings of the Board, substantially correct. It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases. There is likewise no occasion furnished by this case for consideration of the extent to which teachers can be required by narrowly drawn grievance procedures to submit complaints about the operation of the schools to their superiors for action thereon prior to bringing the complaints before the public. We also note that this ease does not present a situation in which a teacher’s public statements are so without foundation as to call into question his fitness to perform his duties in the classroom. In such a case, of course, the statements would merely be evidence of the teacher’s general competence, or lack thereof, and not an independent basis for dismissal. Because we conclude that appellant’s statements were not knowingly or recklessly false, we have no occasion to pass upon the additional question whether a statement that was knowingly or recklessly false would, if it were neither shown nor could reasonably be presumed to have had any harmful effects, still be protected by the First Amendment. See also n. 5, supra.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
DEPARTMENT OF EMPLOYMENT et al. v. UNITED STATES et al. No. 78. Argued November 15, 1966. Decided December 12, 1966. James D. McKevitt, Assistant Attorney General of Colorado, argued the cause for appellants. With him on the brief were Duke W. Dunbar, Attorney General, and Frank E. Hickey, Deputy Attorney General. Jack S. Levin argued the cause for the United States et al. With him on the brief were Solicitor General Marshall, Assistant Attorney General Rogovin, Harold C. Wilkenfeld and William Massar. Mr. Justice Fortas delivered the opinion of the Court. Colorado is one of three States whose Employment Security Act imposes an unemployment compensation tax upon charitable institutions, the tax being measured by the amount of wages paid to the institution’s employees. Colo. Rev. Stat. Ann. § 82-6-1. When the State’s Department of Employment sought to enforce the tax upon wages paid Colorado-based employees of the American National Red Cross (hereinafter referred to as Red Cross), the Red Cross objected that as a “federal instrumentality” it was immune from such taxation. See McCulloch v. Maryland, 4 Wheat. 316 (1819). Tax payments aggregating more than $10,000 were made under protest, applications for refund accompanying each payment. The Department of Employment denied each such application. Thereupon the Red Cross, along with the United States as co-plaintiff, invoked the jurisdiction of a three-judge federal District Court to enjoin enforcement against it of the Colorado Employment Security Act on the ground that as applied to it, a federal instrumentality, the statute violated the Federal Constitution. See 28 U. S. C. § 2281. The Department of Employment responded that the Red Cross was not a federal instrumentality, that any immunity it might have had been waived by Congress in the 1960 amendments to the Federal Unemployment Tax Act (26 U. S. C. § 3301 et seq.), and that in any event the Red Cross had failed to exhaust available administrative and state judicial remedies. The three-judge federal District Court ruled in favor of the Red Cross and the United States on each of these issues, ordered a refund of taxes already paid, and enjoined enforcement of the tax statute against the Red Cross. Pursuant to 28 U. S. C. § 1253, the Department of Employment and its executive director sought direct review here. In setting the case for argument, we postponed consideration of questions pertaining to our jurisdiction and that of the three-judge court. 384 U. S. 949 (1966). We are persuaded that there exist no jurisdictional barriers to our disposition of this appeal on the merits. Any challenge to the applicability of the three-judge court provision, 28 U. S. C. § 2281, is foreclosed by this Court’s decision in Query v. United States, 316 U. S. 486 (1942), where the Court held that three judges were required to entertain a suit to enjoin a state tax statute sought to be enforced against an Army Post Exchange which asserted its immunity as a federal instrumentality, and we do not consider that our later decision in Swift & Co. v. Wickham, 382 U. S. 111 (1965), requires a different conclusion. Nor is there compelling force in the argument, advanced by appellants, that the Tax Injunction Act (28 U. S. C. §1341) requires appellees first to exhaust their state remedies, which are alleged by appellants to be “plain, speedy and efficient.” We need not decide whether omission to provide interest on a successful refund application renders the state remedy here an inadequate one within the meaning of § 1341. For we conclude, in accord with an unbroken line of authority and convincing evidence of legislative purpose, that § 1341 does not act as a restriction upon suits by the United States to protect itself and its instrumentalities from unconstitutional state exactions. With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Monaco v. Mississippi, 292 U. S. 313 (1934), and Ex parte Young, 209 U. S. 123 (1908). On the merits, we hold that the Red Cross is an instrumentality of the United States for purposes of immunity from state taxation levied on its operations, and that this immunity has not been waived by congressional enactment. Although there is no simple test for ascertaining whether an institution is so closely related to governmental activity as to become a tax-immune instrumentality, the Red Cross is clearly such an instrumentality. See generally, Sturges, The Legal Status of the Red Cross, 56 Mich. L. Rev. 1 (1957). Congress chartered the present Red Cross in 1905, subjecting it to governmental supervision and to a regular financial audit by the Defense, then War, Department. 33 Stat. 599, as amended, 36 U. S. C. § 1 et seq. Its principal officer is appointed by the President, who also appoints seven (all government officers) of the remaining 49 Governors. 33 Stat. 601, as amended, 36 U. S. C. § 5. By statute and Executive Order there devolved upon the Red Cross the right and the obligation to meet this Nation’s commitments under various Geneva Conventions, to perform a wide variety of functions indispensable to the workings of our Armed Forces around the globe, and to assist the Federal Government in providing disaster assistance to the States in time of need. Although its operations are financed primarily from voluntary private contributions, the Red Cross does receive substantial material assistance from the Federal Government. And time and time again, both the President and the Congress have recognized and acted in reliance upon the Red Cross’ status virtually as an arm of the Government. In those respects in which the Red Cross differs from the usual government agency — e. g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs — the Red Cross is like other institutions — e. g., national banks — whose status as tax-immune instrumen-talities of the United States is beyond dispute. Nor did Congress, in the course of amending the federal unemployment compensation tax statute in 1960, strip away any of this immunity. Certainly there was no intent to do so. Indeed, in debate on the floor of the House, Chairman Mills and Congressman Ikard of the Ways and Means Committee expressed their view, which was not controverted, that the Red Cross’ immunity from state and federal unemployment compensation taxes would survive the amendments. 106 Cong. Rec. 13827 (1960). And the House Committee Report stated that no nongovernment-owned instrumentality which enjoyed immunity from the federal tax prior to 1960 — the Red Cross had such an exemption — was to lose its state-tax immunity. H. R. Rep. No. 1799, 86th Cong., 2d Sess., pp. 55-56, 125 (1960). Finally, the present statutory scheme does not deprive the Red Cross of immunity. That the Red Cross enjoyed immunity prior to the 1960 amendments seems clear, and was at the time conceded by the State of Colorado. Under the pre-existing scheme, § 3305 (b) of Title 26 exempted from state taxation any federal instrumentality exempt from the federal unemployment compensation tax imposed by § 3301. The Red Cross was so exempt as the result of §§ 3306 (c) (6) (B) and 3306 (c)(8), which referred to “service performed in the employ of [a charitable organization].” As amended in 1960, § 3305 (b) continues the state-tax immunity for any “instrumentality to which section 3306 (c)(6) applies.” And the latter section as amended includes employment “exempt from the tax imposed by section 3301 by virtue of any provision of law which specifically refers to such section ... in granting such exemption.” 26 U. S. C. § 3306 (c)(6)(B). Although §3306 (c)(8), which exempts from the federal tax “service performed in the employ of a [charitable institution],” does not contain an explicit citation to § 3301, its sole function is to exempt certain employment from the reach of that section. We hold that federal instrumentalities like the Red Cross, exempted from the federal tax by virtue of §3306 (e)(8), are likewise exempt from state taxation under § 3306 (c) (6) (B). Accordingly, the judgment appealed from is Affirmed. The other States are Alaska and Hawaii. See Alaska Stat. § 23.20.525 (c) (7) (1962); Hawaii Rev. Laws § 93-7 (i) (Supp. 1963). The statute provides that “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State . . . shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” Section 1253 authorizes direct appeal to this Court from an order granting an injunction in any proceeding “required by any Act of Congress to be heard and determined by a district court of three judges.” See also United States v. Georgia Pub. Serv. Comm’n, 371 U. S. 285, 287 (1963); Paul v. United States, 371 U. S. 245, 249-250 (1963). Compare Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 37-50 (1964), with Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv. L. Rev. 299, 312-313 (1963). Section 1341 provides that “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” United States v. Arlington County, Commonwealth of Virginia, 326 F. 2d 929, 931 (C. A. 4th Cir. 1964); United States v. Bureau of Revenue of State of N. M., 291 F. 2d 677, 679 (C. A. 10th Cir. 1961); United States v. Woodworth, 170 F. 2d 1019 (C. A. 2d Cir. 1948); City of Springfield v. United States, 99 F. 2d 860, 862 (C. A. 1st Cir. 1938), cert. denied, 306 U. S. 650 (1939); United States v. Livingston, 179 F. Supp. 9, 11-12 (D. C. E. D. S. C. 1959), aff'd, 364 U. S. 281 (1960). See S. Rep. No. 1035, 75th Cong., 1st Sess., pp. 2-3 (1937) ; EL R. Rep. No. 1503, 75th Cong., 1st Sess., pp. 2-3 (1937); 81 Cong. Rec. 1416-1417 (1937). E. g., Geneva Convention of August 22, 1864, For the Amelioration of the Wounded in Armies in the Field, 22 Stat. 940 (1882); Geneva Convention of July 27, 1929, For the Amelioration of the Condition of the Wounded and the Sick of Armies in the Field, 47 Stat. 2074 (1932); Geneva Convention of August 12, 1949, For the Multilateral Protection of War Victims, 6 U. S. T. & O. I. A. 3114, T. I. A. S. No. 3362. See, e. g., 10 U. S. C. §2602; 33 Stat. 600, as amended, 36 Ü. S. C. § 3. See 33 Stat. 600, as amended, 36 U. S. C. §3; 64 Stat. 1109, 42 U. S. C. §§ 1855-1855g. See, e. g., 46 Stat. 66, as amended, 36 U. S. C. § 13 (permanent headquarters building). See, e. g., Proclamation of President Taft, August 22, 1911, 37 Stat. 1716; 64 Stat. 1109, 42 U. S. C. §§ 1855a (f), 1855b, 1855c; H. Con. Res. 232, 70 Stat. b32 (1956); H. R. Rep. No. 1728, 82d Cong., 2d Sess., p. 2 (1952). Such was the opinion of Assistant Attorney General McKevitt, who so informed appellant Department of Employment. See letter of the Assistant Attorney General to appellee Red Cross, dated November 21, 1960, exhibit 2, in support of appellees’ motion for summary judgment below.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26, et al. v. PICO, BY HIS NEXT FRIEND PICO, et al. No. 80-2043. Argued March 2, 1982 Decided June 25, 1982 Justice BREnnan, joined by Justice Marshall and Justice Stevens, concluded: 1. The First Amendment imposes limitations upon a local school board’s exercise of its discretion to remove books from high school and junior high school libraries. Pp. 863-872. (a) Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines School Dist., 393 U. S. 503, 506, and such rights may be directly and sharply implicated by the removal of books from the shelves of a school library. While students’ First Amendment rights must be construed “in light of the special characteristics of the school environment,” ibid., the special characteristics of the school library make that environment especially appropriate for the recognition of such rights. Pp. 863-869. Ob) While petitioners might rightfully claim absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values in schools, petitioners’ reliance upon that duty is misplaced where they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom into the school library and the regime of voluntary inquiry that there holds sway. P. 869. (c) Petitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. Whether petitioners’ removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” West Virginia Board of Education v. Barnette, 319 U. S. 624, 642. If such an intention was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution. Pp. 869-872. 2. The evidentiary materials before the District Court must be construed favorably to respondents, given the procedural posture of this case. When so construed, those evidentiary materials raise a genuine issue of material fact as to whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books at issue from their school libraries. Respondents’ allegations, and some of the evidentiary materials before the District Court, also fail to exclude the possibility that petitioners’ removal procedures were highly irregular and ad hoc — the antithesis of those procedures that might tend to allay suspicions regarding petitioners’ motivation. Pp. 872-875. Justice Blackmun concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education, would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political ideas or social perspectives discussed in the books, when that action is motivated simply by the officials’ disapproval of the ideas involved. Pp. 879-882. Justice White, while agreeing that there should be a trial to resolve the factual issues, concluded that there is no necessity at this point for discussing the extent to which the First Amendment limits the school board’s discretion to remove books from the school libraries. Pp. 883-884. BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which Marshall and Stevens, JJ., joined and in all but Part II-A(l) of which Blackmun, J., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 875. White, J., filed an opinion concurring in the judgment, post, p. 883. Burger, C. J., filed a dissenting opinion, in which POWELL, REHNQUIST, and O’CONNOR, JJ., joined, post, p. 885. Powell, J., filed a dissenting opinion, post, p. 893. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 904. O’Connor, J., filed a dissenting opinion, post, p. 921. George W. Lipp, Jr., argued the cause for petitioners. With him on the briefs was David S. J. Rubin. Alan H. Levine argued the cause for respondents. With him on the brief were Steven R. Shapiro, Burt Neubome, Alan Azzara, Bruce J. Ennis, Jr., and Charles S. Sims. Briefs of amid curiae urging reversal were filed by Bruce A. Taylor for Charles H. Keating, Jr., et al.; and by David Crump for the Legal Foundation of America. Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Marska Berzon, Laurence Gold, and George Kaufmann for the American Federation of Labor and Congress of Industrial Organizations et al.; by Don H. Reuben and James A. Klenk for the American Library Association et al.; by Harold P. Weinberger, Justin J. Finger, and Jeffrey P. Sinensky for the Anti-Defamation League of B’Nai B’Rith; by R. Bruce Rich for the Association of American Publishers, Inc., et al.; by Irwin Karp for the Authors League of America, Inc.; by Robert M. Weinberg, Michael H. Gottesman, and David Rubin for the National Education Association; by James R. Sandner, Jeffrey S. Karp, and Elizabeth A. Truly for New York State United Teachers; and by Jerry Simon Chasen and Marcia B. Paul for P. E. N. American Center. Briefs of amici curiae were filed by Nathan Z. Dershowitz and Edward Labaton for the American Jewish Congress et al.; and by Whitney North Seymour, Jr., and Martha L. Wolfe for the Long Island Library Association Coalition. Justice Brennan announced the judgment of the Court and delivered an opinion, in which Justice Marshall and Justice Stevens joined, and in which Justice Blackmun joined except for Part II-A-(l). The principal question presented is whether the First Amendment imposes limitations upon the exercise by a local school board of its discretion to remove library books from high school and junior high school libraries. h — ( Petitioners are the Board of Education of the Island Trees Union Free School District No. 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Picó, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School. In September 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference these petitioners obtained lists of books described by Ahrens as “objectionable,” App. 22, and by Martin as “improper fare for school students,” id., at 101. It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library. In February 1976, at a meeting with the Superintendent of Schools and the Principals of the High School and Junior High School, the Board gave an “unofficial direction” that the listed books be removed from the library shelves and delivered to the Board’s offices, so that Board members could read them. When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,” and concluded that “[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.” 474 F. Supp. 387, 390 (EDNY 1979). A short time later, the Board appointed a “Book Review Committee,” consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books’ “educational suitability,” “good taste,” “relevance,” and “appropriateness to age and grade level.” In July, the Committee made its final report to the Board, recommending that five of the listed books be retained and that two others be removed from the school libraries. As for the remaining four books, the Committee could not agree on two, took no position on one, and recommended that the last book be made available to students only with parental approval. The Board substantially rejected the Committee’s report later that month, deciding that only one book should be returned to the High School library without restriction, that another should be made available subject to parental approval, but that the remaining nine books should “be removed from elementary and secondary libraries and [from] use in the curriculum.” Id., at 391. The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed. Respondents reacted to the Board’s decision by bringing the present action under 42 U. S. C. §1983 in the United States District Court for the Eastern District of New York. They alleged that petitioners had “ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.” App. 4. Respondents claimed that the Board’s actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board’s actions were unconstitutional, and for preliminary and permanent injunctive relief ordering the Board to return the nine books to the school libraries and to refrain from interfering with the use of those books in the schools’ curricula. Id., at 5-6. The District Court granted summary judgment in favor of petitioners. 474 F. Supp. 387 (1979). In the court’s view, “the parties substantially agree[d] about the motivation behind the board’s actions,” id., at 391 — namely, that “the board acted not on religious principles but on its conservative educational philosophy, and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district’s junior and senior high school students.” Id., at 392. With this factual premise as its background, the court rejected respondents’ contention that their First Amendment rights had been infringed by the Board’s actions. Noting that statutes, history, and precedent had vested local school boards with a broad discretion to formulate educational policy, the court concluded that it should not intervene in “ ‘the daily operations of school systems’” unless “‘basic constitutional values’” were “‘sharply implicate[d],’” and determined that the conditions for such intervention did not exist in the present case. Acknowledging that the “removal [of the books]... clearly was content-based,” the court nevertheless found no constitutional violation of the requisite magnitude: “The board has restricted access only to certain books which the board believed to be, in essence, vulgar. While removal of such books from a school library may... reflect a misguided educational philosophy, it does not constitute a sharp and direct infringement of any first amendment right.” Id., at 397. A three-judge panel of the United States Court of Appeals for the Second Circuit reversed the judgment of the District Court, and remanded the action for a trial on respondents’ allegations. 638 F. 2d 404 (1980). Each judge on the panel filed a separate opinion. Delivering the judgment >of the court, Judge Sifton treated the case as involving “an unusual and irregular intervention in the school libraries’ operations by persons not routinely concerned with such matters,” and concluded that petitioners were obliged to demonstrate a reasonable basis for interfering with respondents’ First Amendment rights. Id., at 414-415. He then determined that, at least at the summary judgment stage, petitioners had not offered sufficient justification for their action, and concluded that respondents “should have... been offered an opportunity to persuade a finder of fact that the ostensible justifications for [petitioners’] actions... were simply pretexts for the suppression of free speech.” 7d., at 417. Judge Newman concurred in the result. Id., at 432-438. He viewed the case as turning on the contested factual issue of whether petitioners’ removal decision was motivated by a justifiable desire to remove books containing vulgarities and sexual explicitness, or rather by an impermissible desire to suppress ideas. Id., at 436-437. We granted certiorari, 454 U. S. 891 (1981). II We emphasize at the outset the limited nature of the substantive question presented by the case before us. Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom. For example, Meyer v. Nebraska, 262 U. S. 390 (1923), struck down a state law that forbade the teaching of modem foreign languages in public and private schools, and Epperson v. Arkansas, 393 U. S. 97 (1968), declared unconstitutional a state law that prohibited the teaching of the Darwinian theory of evolution in any state-supported school. But the current action does not require us to re-enter this difficult terrain, which Meyer and Epperson traversed without apparent misgiving. For as this case is presented to us, it does not involve textbooks, or indeed any books that Island Trees students would be required to read. Respondents do not seek in this Court to impose limitations upon their school Board’s discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school Board to add-to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them. The substantive question before us is still further constrained by the procedural posture of this case. Petitioners were granted summary judgment by the District Court. The Court of Appeals reversed that judgment, and remanded the action for a trial on the merits of respondents’ claims. We can reverse the judgment of the Court of Appeals, and grant petitioners’ request for reinstatement of the summary judgment in their favor, only if we determine that “there is no genuine issue as to any material fact,” and that petitioners are “entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). In making our determination, any doubt as to the existence of a genuine issue of material fact must be resolved against petitioners as the moving party. Adickes v. S. H. Kress & Co., 398 U. S. 144, 157-159 (1970). Furthermore, “[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits, and depositions submitted below] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U. S. 654, 655 (1962). In sum, the issue before us in this case is a narrow one, both substantively and procedurally. It may best be restated as two distinct questions. First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations? If we answer either of these questions in the negative, then we must reverse the judgment of the Court of Appeals and reinstate the District Court’s summary judgment for petitioners. If we answer both questions in the affirmative, then we must affirm the judgment below. We examine these questions in turn. A (1) The Court has long recognized that local school boards have broad discretion in the management of school affairs. See, e. g., Meyer v. Nebraska, supra, at 402; Pierce v. Society of Sisters, 268 U. S. 510, 534 (1925). Epperson v. Arkan sas, supra, at 104, reaffirmed that, by and large, “public education in our Nation is committed to the control of state and local authorities,” and that federal courts should not ordinarily “intervene in the resolution of conflicts which arise in the daily operation of school systems.” Tinker v. Des Moines School Dist., 392 U. S. 503, 507 (1969), noted that we have “repeatedly emphasized... the comprehensive authority of the States and of school officials... to prescribe and control conduct in the schools.” We have also acknowledged that public schools are vitally important “in the preparation of individuals for participation as citizens,” and as vehicles for “inculcating fundamental values necessary to the maintenance of a democratic political system.” Ambach v. Norwich, 441 U. S. 68, 76-77 (1979). We are therefore in full agreement with petitioners that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” Brief for Petitioners 10. At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. In West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), we held that under the First Amendment a student in a public school could not be compelled to salute the flag. We reasoned: “Boards of Education... have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Id., at 637. Later cases have consistently followed this rationale. Thus Epperson v. Arkansas invalidated a State’s anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts “to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry.” 393 U. S., at 104. And Tinker v. Des Moines School Dist., supra, held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government’s policy in Vietnam; we stated there that the “comprehensive authority... of school officials” must be exercised “consistent with fundamental constitutional safeguards.” 393 U. S., at 507. In sum, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” id., at 506, and therefore local school boards must discharge their “important, delicate, and highly discretionary functions” within the limits and constraints of the First Amendment. The nature of students’ First Amendment rights in the context of this case requires further examination. West Virginia Board of Education v. Barnette, supra, is instructive. There the Court held that students’ liberty of conscience could not be infringed in the name of “national unity” or “patriotism.” 319 U. S., at 640-641. We explained that “the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id., at 642. Similarly, Tinker v. Des Moines School Dist., supra, held that students’ rights to freedom of expression of their political views could not be abridged by reliance upon an “undifferentiated fear or apprehension of disturbance” arising from such expression: “Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this... often disputatious society.” 393 U. S., at 508-509. In short, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to... students.” Id., at 506. Of course, courts should not “intervene in the resolution of conflicts which arise in the daily operation of school systems” unless “basic constitutional values” are “directly and sharply implicate^]” in those conflicts. Epperson v. Arkansas, 393 U. S., at 104. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 783 (1978). And we have recognized that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” Griswold v. Connecticut, 381 U. S. 479, 482 (1965). In keeping with this princi-pie, we have held that in a variety of contexts “the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U. S. 557, 564 (1969); see Kleindienst v. Mandel, 408 U. S. 753, 762-763 (1972) (citing cases). This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them: “The right of freedom of speech and press... embraces the right to distribute literature, and necessarily protects the right to receive it.” Martin v. Struthers, 319 U. S. 141, 143 (1943) (citation omitted). “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” Lamont v. Postmaster General, 381 U. S. 301, 308 (1965) (Brennan, J., concurring). More importantly, the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom. Madison admonished us: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” 9 Writings of James Madison 103 (G. Hunt ed. 1910). As we recognized in Tinker, students too are beneficiaries of this principle: “In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.... [S]ehool officials cannot suppress ‘expressions of feeling with which they do not wish to contend.’” 393 U. S., at 511 (quoting Burnside v. Byars, 363 F. 2d 744, 749 (CA5 1966)). In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members. Of course all First Amendment rights accorded to students must be construed “in light of the special characteristics of the school environment.” Tinker v. Des Moines School Dist., 393 U. S., at 506. But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students. A school library, no less than any other public library, is “a place dedicated to quiet, to knowledge, and to beauty.” Brown v. Louisiana, 383 U. S. 131, 142 (1966) (opinion of Fortas, J.). Keyishian v. Board of Regents, 385 U. S. 589 (1967), observed that "‘students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.’” The school library is the principal locus of such freedom. As one District Court has well put it, in the school library “a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum.... Th[e] student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom.” Right to Read Defense Committee v. School Committee, 454 F. Supp. 703, 715 (Mass. 1978). Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to “transmit community values” through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners’ reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway. (2) In rejecting petitioners’ claim of absolute discretion to remove books from their school libraries, we do not deny that local school boards have a substantial legitimate role to play in the determination of school library content. We thus must turn to the question of the extent to which the First Amendment places limitations upon the discretion of petitioners to remove books from their libraries. In this inquiry we enjoy the guidance of several precedents. West Virginia Board of Education v. Barnette stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.... If there are any circumstances which permit an exception, they do not now occur to us.” 319 U. S., at 642. This doctrine has been reaffirmed in later cases involving education. For example, Keyishian v. Board of Regents, supra, at 603, noted that “the First Amendment... does not tolerate laws that cast a pall of orthodoxy over the classroom;” see also Epperson v. Arkansas, 393 U. S., at 104-105. And Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274 (1977), recognized First Amendment limitations upon the discretion of a local school board to refuse to rehire a nontenured teacher. The school board in Mt. Healthy had declined to renew respondent Doyle’s employment contract, in part because he had exercised his First Amendment rights. Although Doyle did not have tenure, and thus “could have been discharged for no reason whatever,” Mt. Healthy held that he could “nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.” Id., at 283-284. We held further that once Doyle had shown “that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’... in the Board’s decision not to rehire him,” the school board was obliged to show “by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.” Id., at 287. With respect to the present case, the message of these precedents is clear. Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction
KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE v. HYATT No. 10-1219. Argued January 9, 2012 Decided April 18, 2012 Thomas, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 446. Ginger D. Anders argued the cause for petitioner. With her on the briefs were Solicitor General Verrilli, Assistant Attorney General West, Deputy Solicitor General Stewart, Deputy Assistant Attorney General Brinkmann, Raymond T Chen, Robert J. McManus, and Thomas W. Krause. Aaron M. Panner argued the cause and filed a brief for respondent. John A. Dragseth, Lauren A. Degnan, Tina M. Chappell, Kevin T. Kramer, and Horacio E. Gutiérrez filed a brief for Intel Corp. et al. as amici curiae urging reversal. Briefs of amici curiae were filed for the American Intellectual Property Law Association by Vernon M. Winters and William G. Barber; for IEEE.-USA by Chris J. Katopis; for the Intellectual Property Owners Association by Robert M. Isackson, Douglas K. Norman, and Kevin H. Rhodes; for the New York Intellectual Property Law Association by Charles E. Miller, Theresa M. Gillis, John M. Hintz, and David F. Ryan; and for Verizon Communications, Inc., et al. by Daryl Joseffer, Adam Conrad, John Thorne, and Paul H. Roeder. Justice Thomas delivered the opinion of the Court. The Patent Act of 1952, 35 U. S. C. § 100 et seq., grants a patent applicant whose claims are denied by the Patent and Trademark Office (PTO) the opportunity to challenge the PTO’s decision by filing a civil action against the Director of the PTO in federal district court. In such a proceeding, the applicant may present evidence to the district court that he did not present to the PTO. This case requires us to consider two questions.. First, we must decide whether there are any limitations on the applicant’s ability to introduce new evidence before the district court. For the reasons set forth below, we conclude that there are no evidentiary restrictions beyond those already imposed by the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Second, we must determine what standard of review the district court should apply when considering new evidence. On this question, we hold that the district court must make a de novo finding when new evidence is presented on a disputed question of fact. In deciding what weight to afford that evidence, the district court may, however, consider whether the applicant had an opportunity to present the evidence to the PTO. I The Patent Act of 1952 establishes the process by which the PTO examines patent applications. A patent examiner first determines whether the application satisfies the statutory prerequisites for granting a patent. 35 U. S. C. § 131. If the examiner denies the application, the applicant may file an administrative appeal with the PTO’s Board of Patent Appeals and Interferences (Board). § 134. If the Board also denies the application, the Patent Act gives the disappointed applicant two options for judicial review of the Board’s decision. The applicant may either: (1) appeal the decision directly to the United States Court of Appeals for the Federal Circuit, pursuant to § 141; or (2) file a civil action against the Director of the PTO in the United States District Court for the District of Columbia pursuant to § 145. In a § 141 proceeding, the Federal Circuit must review the PTO’s decision on the same administrative record that was before the PTO. § 144. Thus, there is no opportunity for the applicant to offer new evidence in such a proceeding. In Dickinson v. Zurko, 527 U. S. 150 (1999), we addressed the standard that governs the Federal Circuit’s review of the PTO’s factual findings. We held that the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., applies to § 141 proceedings and that the Federal Circuit therefore should set aside the PTO’s factual’findings only if they are “ ‘unsupported by substantial evidence.’” 527 U. S., at 152 (quoting 5 U.S. C. §706). In Zurko, we also noted that, unlike § 141, § 145 permits the applicant to present new evidence to the district court that was not presented to the PTO. 527 U. S., at 164. This •opportunity to present new evidence is significant, not the least because the PTO generally does not accept oral testimony. See Brief for Petitioner 40, n. 11. We have not yet addressed, however, whether there are any limitations on the applicant’s ability to introduce new evidence in such a proceeding or the appropriate standard of review that a district court should apply when considering such evidence. I — I HH In 1995, respondent Gilbert Hyatt filed a patent application that, as amended, included 117 claims. The PTO’s patent examiner denied each claim for lack of an adequate written description. See 35 U. S. C. § 112 (requiring patent applications to include a “specification” that provides, among other information, a written description of the invention and of the manner and process of making and using it). Hyatt appealed the examiner’s decision to the Board, which eventually approved 38 claims, but denied the rest. Hyatt then filed a § 145 action in Federal District Court against the Director of the PTO (Director), petitioner here. To refute the Board’s conclusion that his patent application lacked an adequate written description, Hyatt submitted- a written declaration to the District Court. In the declaration, Hyatt identified portions of the patent specification that, in his view, supported the claims that the Board held were not patentable. The District Court determined that it could not consider Hyatt’s declaration because applicants are “ ‘precluded from presenting new issues, at least in the absence of some reason of justice put forward for failure to present the issue to the Patent Office.’” Hyatt v. Dudas, Civ. Action No. 03-0901 (D DC, Sept. 30, 2005), p. 9, App. to Pet. for Cert. 182a (quoting DeSeversky v. Brenner, 424 F. 2d 857, 858 (CADC 1970) (per curiam)). Because the excluded declaration was the only additional evidence submitted by Hyatt in the § 145 proceeding, the evidence remaining before the District Court consisted entirely of the PTO’s administrative record. Therefore, the District Court reviewed all of the PTO’s factual findings under the APA’s deferential “substantial evidence” standard. See Mazzari v. Rogan, 323 F. 3d 1000,1004-1005 (CA Fed. 2003). Applying that standard, the District Court granted summary judgment to the Director. Hyatt appealed to the Federal Circuit. A divided panel affirmed, holding that the APA imposed restrictions on the admission of new evidence in a § 145 proceeding and that the district court’s review is not “wholly de novo.” Hyatt v. Doll, 576 F. 3d 1246, 1269-1270 (2009). The Federal Circuit granted rehearing en banc and vacated the District Court’s grant of summary judgment. The en bane court first held “that Congress intended that applicants would be free to introduce new evidence in § 145 proceedings subject only to the rules applicable to all civil actions, the Federal Rules of Evidence and the Federal Rules of Civil Procedure,” even if the applicant had no justification for failing to present the evidence to the PTO. 625 F. 3d 1320, 1331 (2010). Reaffirming its precedent, the court also held that when new, conflicting evidence is introduced in a § 145 proceeding, the district court must make de novo findings to take such evidence into account. Id., at 1336. We granted certiorari, 564 U. S. 1036 (2011), and now affirm. III The Director challenges both aspects of the Federal Circuit's decision. First, the Director argues that a district court should admit new evidence in a § 145 action only if the proponent of the evidence had no reasonable opportunity to present it to the PTO in the first instance. Second, the Director contends that, when new evidence is introduced, the district court should overturn the PTO’s factual findings only if the new evidence clearly establishes that the agency erred. Both of these arguments share the premise that § 145 creates a special proceeding that is distinct from a typical civil suit filed in federal district court and that is thus governed by a different set of procedural rules. To support this interpretation of § 145, the Director relies on background principles of administrative law and pre-existing practice under a patent statute that predated § 145. For the reasons discussed below, we find that neither of these factors justifies a new evidentiary rule or a heightened standard of review for factual findings in § 145 proceedings. A To address the Director’s challenges, we begin with the text of § 145. See, e. g., Magwood, v. Patterson, 561 U. S. 320, 331 (2010). Section 145 grants a disappointed patent applicant a “remedy by civil action against the Director.” The section further explains that the district court “may adjudge that such applicant is entitled to receive a patent for his invention, as specified in any of his claims involved in the decision of the [PTO], as the facts in the case may appear and such adjudication shall authorize the Director to issue such patent on compliance with the requirements of law.” By its terms, § 145 neither imposes unique evidentiary limits in district court proceedings nor establishes a heightened standard of review for factual findings by the PTO. B In the absence of express support for his position in the text of § 145, the Director argues that the statute should be read in light of traditional principles of administrative law, which Congress codified in the APA. The Director notes that § 145 requires a district court to review the reasoned decisionmaking of the PTO, an executive agency with specific authority and expertise. Accordingly, the Director contends that a district court should defer to the PTO’s factual findings. The Director further contends that, given the traditional rule that a party must exhaust his administrative remedies, a district court should consider new evidence only if the party did not have an opportunity to present it to the agency. We reject the Director’s contention that background principles of administrative law govern the admissibility of new evidence and require a deferential standard of review in a §145 proceeding. Under the APA, judicial review of an agency decision is typically limited to the administrative record. See 5 U. S. C. § 706. But, ás the Director concedes, § 145 proceedings are not so limited, for the district court may consider new evidence. When the district court does so, it must act as a factfinder. Zurko, 527 U. S., at 164. In that role, it makes little sense for the district court to apply a deferential standard of review to PTO factual findings that are contradicted by the new evidence. The PTO, no matter how great its authority or expertise, cannot account for evidence that it has never seen. Consequently, the district court must make its own findings de novo and does not act as the “reviewing court” envisioned by the APA. See 5 U.S. C. §706. We also conclude that the principles of administrative exhaustion do not apply in a § 145 proceeding. The Director argues that applicants must present all available evidence to the PTO to permit the PTO to develop the necessary facts and to give the PTO the opportunity to properly apply the Patent Act in the -first instance. Brief for Petitioner 21-22 (citing McKart v. United States, 395 U. S. 185, 193-194 (1969)). But as this Court held in McKart, a primary-purpose of administrative exhaustion “is, of course, the avoidance of premature interruption of the administrative process.” Id., at 193. That rationale does not apply here because, by the time a §145 proceeding occurs, the PTO’s process is complete. Section 145, moreover, does not provide for remand to the PTO to consider new evidence, and there is no pressing need for such a procedure because a district court, unlike a court of appeals, has the ability and the competence to receive new evidence and to act as a fact-finder. In light of these aspects of §145 proceedings — at least in those cases in which new evidence is presented to the district court on a disputed question of fact — we are not persuaded by the Director’s suggestion that § 145 proceedings are governed by the' deferential principles of agency review. C Having concluded that neither the statutory text nor background principles of administrative law support an eviden-tiary limit or a heightened standard of review for factual findings in § 145 proceedings, we turn to the evidentiary and procedural rules that were in effect when Congress enacted § 145 in 1952. Although § 145 is a relatively modern statute, the language in that provision originated in the Act of July 8, 1870 (1870 Act), ch. 230, 16 Stat. 198, and the history of § 145 proceedings can be traced back to the Act of July 4, 1836 (1836 Act), ch. 357, 5 Stat. 117. Thus, we begin our inquiry with the 1836 Act, which established the Patent Office, the PTO’s predecessor, and first authorized judicial review of its decisions. 1 The 1836 Act provided that a patent applicant could bring a bill in equity in federal district court if his application was denied on the ground that it would interfere with another patent. Id., at 123-124; see also B. Shipman, Handbook of the Law of Equity Pleading §§ 101-103, pp. 168-171 (1897). Three years later, Congress expanded that provision, making judicial review available whenever a patent was refused on any ground. Act of Mar. 3, 1839, 5 Stat. 354. Pursuant to these statutes, any disappointed patent applicant could file a bill in equity to have the district court “adjudge” whether the applicant was “entitled, according to the principles and provisions of [the Patent Act], to have and receive a patent for his invention.” 1836 Act, 5 Stat. 124. In 1870, Congress amended the Patent Act again, adding intermediate layers of administrative review and introducing language describing the proceeding in the district court. 16 Stat. 198. Under the 1870 Act, an applicant denied a patent by the primary examiner could appeal first to a three-member board of examiners-in-chief, then to the Commissioner for Patents, and finally to an en banc sitting of the Supreme Court of the District of Columbia. Id., at 205. Notably, Congress described that court’s review as an “appeal” based “on the evidence produced before the commissioner.” Ibid. The 1870 Act preserved the prior remedy of a bill in equity in district court for the applicant whose appeal was denied either by the Commissioner or by the Supreme Court of the District of Columbia. Ibid. The district court, in a proceeding that was distinct from the appeal considered on the administrative record by the Supreme Court of the District of Columbia, would “adjudge” whether the applicant was “entitled, according to law, to receive a patent for his invention ... as the facts in the case may appear.” Ibid. In 1878, Congress codified this provision of the 1870 Act as Revised Statute §4915 (R. S. 4915). That statute was the immediate predecessor to § 145, and its core language remains largely unchanged in § 145. Accordingly, both parties agree that R. S. 4915 and the judicial decisions interpreting that statute should inform our understanding of §145. 2 This Court described the nature of R. S. 4915 proceedings in two different cases: Butterworth v. United States ex rel. Hoe, 112 U. S. 50 (1884), and Morgan v. Daniels, 153 U. S. 120 (1894). In Butterworth, the Court held that the Secretary of the Interior, the head of the federal department in which the Patent Office was a bureau, had no authority to review a decision made by the Commissioner of Patents in an interference proceeding. In its discussion, the Court described the remedy provided by R. S. 4915 as “a proceeding in a court of the United States having original equity jurisdiction under the patent laws, according to the ordinary course of equity practice and procedure. It is not a technical appeal from the Patent Office, like that authorized [before the Supreme Court of the District of Columbia], confined to the case as made in the record of that office, but is' prepared and heard upon all competent evidence adduced and upon the whole merits.” 112 U. S., at 61. The Butterworth Court also cited several lower court cases, which similarly described R. S. 4915 proceedings as “altogether independent” from the hearings before the Patent Office and made clear that the parties were “at liberty to introduce additional evidence” under “the rules and practice of a court of equity.” In re Squire, 22 F. Cas. 1015, 1016 (No. 13,269) (CC ED Mo. 1877); see also Whipple v. Miner, 15 F. 117, 118 (CC Mass. 1883) (describing the federal court’s jurisdiction in an R. S. 4915 proceeding as “an independent, original jurisdiction”); Butler v. Shaw, 21 F. 321, 327 (CC Mass. 1884) (holding that “the court may receive new evidence, and has the same powers as in other cases in equity”). Ten years later, in Morgan, this Court again confronted a ease involving proceedings under R. S. 4915. 153 U. S. 120. There, a party challenged a factual finding by the Patent Office, but neither side presented additional evidence in the District Court. Id., at 122-123. This Court described the parties’ dispute as one over a question of fact that had already “been settled by a special tribunal [e]ntrusted with full power in the premises” and characterized the resulting District Court proceeding not as an independent civil action, but as “something in the nature of a suit to set aside a judgment.” Id., at 124. Consistent with that view, the Court held that the agency’s findings should not be overturned by “a mere preponderance of evidence.” Ibid. Viewing Butterworth and Morgan together, one might perceive some tension between the two cases. Butterworth appears to describe an R. S. 4915 proceeding as an original civil action, seeking de novo adjudication of the merits of a patent application. Morgan, on the other hand, appears to describe an R. S. 4915 proceeding as a suit for judicial review of agency action, governed by a deferential standard of review. To resolve that apparent tension, the Director urges us to disregard the language in Butterworth as mere dicta and to follow Morgan. He argues that Butterworth “shed[s] no light on the extent to which new evidence was admissible in R. S. 4915 proceedings or on the standard of review that applied'in such suits.” Brief for Petitioner 33. The Director maintains that Morgan, in contrast, firmly established that a district court in such a proceeding performs a deferential form of review, governed by traditional principles of administrative law. We reject the Director’s position. We think that the differences between Butterworth and Morgan are best explained by the fact that the two cases addressed different circumstances. Butterworth discussed the character of an R. S. 4915 proceeding in which á disappointed patent applicant challenged the Board’s denial of his application. Although that discussion was not strictly necessary to Butterworth’s holding it was also not the kind of ill-considered dicta that we are inclined to ignore. The But-terworth Court carefully examined the various provisions providing relief from the final denial of a patent application by the Commissioner of Patents to determine that the Secretary of the Interior had no role to play in that process. 112 U. S., at 59-64. The Court further surveyed the decisions of the lower courts with regard to the nature of an R. S. 4915 proceeding and concluded that its view was “the uniform and correct practice in the Circuit Courts.” Id., at 61. We note that this Court reiterated Butterworth⅛ well-reasoned interpretation of R. S. 4915 in three later cases. Morgan, on the other hand, concerned a different situation from the one presented in this case. First, Morgan addressed an interference proceeding. See 153 U. S., at 125 (emphasizing that “the question decided in the Patent Office is one between contesting parties as to priority of invention”). Although interference proceedings were previously governed by R. S. 4915, they are now governed by a separate section of the Patent Act, 35 U. S. C. § 146, and therefore do not implicate § 145. In addition, Morgan did not involve a proceeding in which new evidence was presented to the District Court. See 153 U. S., at 122 (stating that the ease “was submitted, without any additional testimony, to the Circuit Court”). 3 Because in this case we are concerned only with § 145 proceedings in which new evidence has been presented to the District Court, Butterworth rather than Morgan guides our decision. In Butterworth, this Court observed that an R. S. 4915 proceeding should be conducted “according to the ordinary course of equity practice and procedure” and that it should be “prepared and heard upon all competent evidence adduced and upon the whole merits.” 112 U. S., at 61. Likewise, we conclude that a district court conducting a § 145 proceeding may consider “all competent evidence adduced,” id., at 61, and is not limited to considering only new evidence that could not have been presented to the PTO. Thus, we agree with the Federal Circuit that “Congress intended that applicants would be free to introduce new evidence in § 145 proceedings subject only to the rules applicable to all civil actions, the Federal Rules of Evidence and the Federal Rules of Civil Procedure.” 625 F. 3d, at 1331. We also agree with the Federal Circuit’s longstanding view that, “where new evidence is presented to the district court on a disputed fact question, a de novo finding will be necessary to take such evidence into account together with the evidence before the board.” Fregeau v. Mossinghoff, 776 F. 2d 1034, 1038 (1985). As we noted in Zurko, the district court acts as a factfinder when new evidence is introduced in a § 145 proceeding. 527 U. S., at 164. The district court must assess the credibility of new witnesses and other evidence, determine how the new evidence comports with the existing administrative record, and decide what weight the new evidence deserves. As a logical matter, the district court can only make these determinations de novo because it is the first tribunal to hear the evidence in question. Furthermore, a de novo standard adheres to this Court’s instruction in Butterworth that an R. S. 4915 proceeding be heard "upon the whole merits” and conducted “according to the ordinary course of equity practice and procedure.” 112 U. S., at 61. D Although we reject the Director’s proposal for a stricter evidentiary rule and an elevated standard of review in § 145 proceedings, we agree with the Federal Circuit that the district court may, in its discretion, “consider the proceedings before and findings of the Patent Office in deciding what weight to afford an applicant’s newly-admitted evidence.” 625 F. 3d, at 1335. Though the PTO has special expertise in evaluating patent applications, the district court cannot meaningfully defer to the PTO’s factual findings if the PTO considered a different set of facts. Cf. Microsoft Corp. v. i4i Ltd. Partnership, 564 U. S. 91, 111 (2011) (noting that “if the PTO did not have all material facts before it, its considered judgment may lose significant force”). For this reason, we conclude that the proper means for the district court to accord respect to decisions of the PTO is through the court’s broad discretion over the weight to be given to evidence newly adduced in the § 145' proceedings. The Director warns that allowing the district court to consider all admissible evidence and to make de novo findings will encourage patent applicants to withhold evidence from the PTO intentionally with the goal of presenting that evidence for the first time to a nonexpert judge. Brief for Petitioner 23. We find that scenario unlikely. An applicant who pursues such a strategy would be intentionally undermining his claims before the PTO on the speculative chance that he will gain some advantage in the § 145 proceeding by presenting new evidence to a district court judge. HH <1 .For these reasons, we conclude that there are no limitations on a patent applicant’s ability to introduce new evidence in a § 145 proceeding beyond those already present in the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Moreover, if new evidence is presented on a disputed question of fact, the district court must make de novo factual findings that take account of both the new evidence and the administrative record before the PTO. In light of these conclusions, the Federal Circuit was correct to vacate the judgment of the District Court, which excluded newly presented evidence under the view that it “need not consider evidence negligently submitted after the end of administrative proceedings.” Civ. Action No. 03-0901, at 15, App. to Pet. for Cert. 189a. The judgment is affirmed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. On September 16,2011, the President signed the Leahy-Smith America Invents Act, 125 Stat. 284, into law. That Act made significant changes to Title 35 of the United States Code, some of which are related to the subject matter of this case. For example, the Act changed the venue for §145 actions from the United States District Court for the District of Columbia to the United States District Court for the Eastern District of Virginia, id., at 316, changed the name of the Board of Patent Appeals and Interferences to the Patent Trial and Appeal Board, id., at 290, and changed the name of interferences to derivation proceedings, ibid. Neither party contends that the Act has any effect on the questions before us, and all references and citations in this opinion are to the law as it existed prior to the Act. The Supreme Court of the District of Columbia was a trial court created by Congress in 1863. Act of Mar. 3, 1863, ch. 91, 12 Stat. 762. Although the court was generally one of first instance, it also functioned as an appellate court when it sat en banc. Voorhees, The District of Columbia Courts: A Judicial Anomaly, 29 Cath. U. L. Rev. 917, 923 (1980). Both parties cite additional cases from the lower courts that they claim support their view of the statute, but these eases are too diverse to support any firm inferences about Congress’ likely intent in enacting § 145. In Gandy v. Marble, 122 U. S. 432 (1887), the Court described an R. S. 4915 proceeding as “a suit according to the ordinary course of equity practice and procedure” rather than a “technical appeal from the Patent Office.” Id., at 439 (citing Butterworth, 112 U. S., at 61). Likewise, in In re Hien, 166 U. S. 432 (1897), the Court distinguished an R. S. 4915 proceeding from the “ ‘technical appeal from the Patent Office’ ” authorized under R. S. 4911, the predecessor to current § 141. Id., at 439 (quoting Butterworth, supra, at 61). And, finally, in Hoover Co. v. Coe, 325 U. S. 79 (1945), the Court cited Butterworth to support its description of an R. S. 4915 proceeding as a “formal trial.” 325 U. S., at 83, and n. 4.	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 93 ]	sc_adminaction
NEW MEXICO et al. v. MESCALERO APACHE TRIBE No. 82-331. Argued April 19, 1983 Decided June 13, 1983 MARSHALL, J., delivered the opinion for a unanimous Court. Thomas L. Dunigan, Special Assistant Attorney General of New Mexico, argued the cause for petitioners. With him on the briefs were Paul Bardacke, Attorney General, and Paul A. Lenzini. George E. Fettinger argued the cause for respondent. With him on the brief were Kathleen A. Miller and Kim Jerome Gottschalk. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Assistant Attorney General Dinkins, and Jacques B. Gelin. Briefs of amici curiae urging reversal were filed by Robert K. Corbin, Attorney General of Arizona, Steven J. Silver, Special Assistant Attorney General, Kenneth L. Eikenberry, Attorney General of Washington, and James R. Johnson, Senior Assistant Attorney General, for the State of Arizona et al.; and by David L. Wilkinson, Attorney General, Richard L. Dewsnup, Solicitor General, and Dallin W. Jensen and Michael M. Quealy, Assistant Attorneys General, for the State of Utah. Briefs of amici curiae urging affirmance were filed by Frank E. Maynes for the Southern Ute Indian Tribe; by Martin E. Seneca, Jr., for the Uintah and Ouray Tribe; and by Robert C. Brauchli for the White Mountain Apache Tribe. Justice Marshall delivered the opinion of the Court. We are called upon to decide in this case whether a State may restrict an Indian Tribe’s regulation of hunting and fishing on its reservation. With extensive federal assistance and supervision, the Mescalero Apache Tribe has established a comprehensive scheme for managing the reservation’s fish and wildlife resources. Federally approved tribal ordinances regulate in detail the conditions under which both members of the Tribe and nonmembers may hunt and fish. New Mexico seeks to apply its own laws to hunting and fishing by nonmembers on the reservation. We hold that this application of New Mexico’s hunting and fishing laws is pre-empted by the operation of federal law. The Mescalero Apache Tribe (Tribe) resides on a reservation located within Otero County in south central New Mexico. The reservation, which represents only a small portion of the aboriginal Mescalero domain, was created by a succession of Executive Orders promulgated in the 1870’s and 1880’s. The present reservation comprises more than 460,000 acres, of which the Tribe owns all but 193.85 acres. Approximately 2,000 members of the Tribe reside on the reservation, along with 179 non-Indians, including resident federal employees of the Bureau of Indian Affairs and the Indian Health Service. The Tribe is organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq. (1976 ed. and Supp. V), which authorizes any tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior (Secretary). The Tribe’s Constitution, which was approved by the Secretary on January 12, 1965, requires the Tribal Council “[t]o protect and preserve the property, wildlife and natural resources of the tribe, and to regulate the conduct of trade and the use and disposition of tribal property upon the reservation, providing that any ordinance directly affecting non-members of the tribe shall be subject to review by the Secretary of [the] Interior.” App. 53a. The Constitution further provides that the Council shall “adopt and approve plans of operation to govern the conduct of any business or industry that will further the economic well-being of the members of the tribe, and to undertake any activity of any nature whatsoever, not inconsistent with Federal law or with this constitution, designed for the social or economic improvement of the Mescalero Apache people,... subject to review by the Secretary of the Interior.” Ibid. Anticipating a decline in the sale of lumber which has been the largest income-producing activity within the reservation, the Tribe has recently committed substantial time and resources to the development of other sources of income. The Tribe has constructed a resort complex financed principally by federal funds, and has undertaken a substantial development of the reservation’s hunting and fishing resources. These efforts provide employment opportunities for members of the Tribe, and the sale of hunting and fishing licenses and related services generates income which is used to maintain the tribal government and provide services to Tribe members. Development of the reservation’s fish and wildlife resources has involved a sustained, cooperative effort by the Tribe and the Federal Government. Indeed, the reservation’s fishing resources are wholly attributable to these recent efforts. Using federal funds, the Tribe has established eight artificial lakes which, together with the reservation’s streams, are stocked by the Bureau of Sport Fisheries and Wildlife of the United States Fish and Wildlife Service, Department of the Interior, which operates a federal hatchery located on the reservation. None of the waters are stocked by the State. The United States has also contributed substantially to the creation of the reservation’s game resources. Prior to 1966 there were only 13 elk in the vicinity of the reservation. In 1966 and 1967 the National Park Service donated a herd of 162 elk which was released on the reservation. Through its management and range development the Tribe has dramatically increased the elk population, which by 1977 numbered approximately 1,200. New Mexico has not contributed significantly to the development of the elk herd or the other game on the reservation, which includes antelope, bear, and deer. The Tribe and the Federal Government jointly conduct a comprehensive fish and game management program. Pursuant to its Constitution and to an agreement with the Bureau of Sport Fisheries and Wildlife, the Tribal Council adopts hunting and fishing ordinances each year. The tribal ordinances, which establish bag limits and seasons and provide for licensing of hunting and fishing, are subject to approval by the Secretary under the Tribal Constitution and have been so approved. The Tribal Council adopts the game ordinances on the basis of recommendations submitted by a Bureau of Indian Affairs’ range conservationist who is assisted by full-time conservation officers employed by the Tribe. The recommendations are made in light of the conservation needs of the reservation, which are determined on the basis of annual game counts and surveys. Through the Bureau of Sport Fisheries and Wildlife, the Secretary also determines the stocking of the reservation’s waters based upon periodic surveys of the reservation. Numerous conflicts exist between state and tribal hunting regulations. For instance, tribal seasons and bag limits for both hunting and fishing often do not coincide with those imposed by the State. The Tribe permits a hunter to kill both a buck and a doe; the State permits only buck to be killed. Unlike the State, the Tribe permits a person to purchase an elk license in two consecutive years. Moreover, since 1977, the Tribe’s ordinances have specified that state hunting and fishing licenses are not required for Indians or non-Indians who hunt or fish on the reservation. The New Mexico Department of Game and Fish has enforced the State’s regulations by arresting non-Indian hunters for illegal possession of game killed on the reservation in accordance with tribal ordinances but not in accordance with state hunting regulations. In 1977 the Tribe filed suit against the State and the Director of its Game and Fish Department in the United States District Court for the District of New Mexico, seeking to prevent the State from regulating on-reservation hunting or fishing by members or nonmembers. On August 2,1978, the District Court ruled in favor of the Tribe and granted declaratory and injunctive relief against the enforcement of the State’s hunting and fishing laws against any person for hunting and fishing activities conducted on the reservation. The United States Court of Appeals for the Tenth Circuit affirmed. 630 F. 2d 724 (1980). Following New Mexico’s petition for a writ of certiorari, this Court vacated the Tenth Circuit’s judgment, 450 U. S. 1036 (1981), and remanded the case for reconsideration in light of Montana v. United States, 450 U. S. 544 (1981). On remand, the Court of Appeals adhered to its earlier decision. 677 F. 2d 55 (1982). We granted certiorari, 459 U. S. 1014 (1982), and we now affirm. HH New Mexico concedes that on the reservation the Tribe exercises exclusive jurisdiction over hunting and fishing by members of the Tribe and may also regulate the hunting and fishing by nonmembers. New Mexico contends, however, that it may exercise concurrent jurisdiction over nonmembers and that therefore its regulations governing hunting and fishing throughout the State should also apply to hunting and fishing by nonmembers on the reservation. Although New Mexico does not claim that it can require the Tribe to permit nonmembers to hunt and fish on the reservation, it claims that, once the Tribe chooses to permit hunting and fishing by nonmembers, such hunting and fishing is subject to any state-imposed conditions. Under this view the State would be free to impose conditions more restrictive than the Tribe’s own regulations, including an outright prohibition. The question in this case is whether the State may so restrict the Tribe’s exercise of its authority. Our decision in Montana v. United States, supra, does not resolve this question. Unlike this case, Montana concerned lands located within the reservation but not owned by the Tribe or its members. We held that the Crow Tribe could not as a general matter regulate hunting and fishing on those lands. 450 U. S., at 557-567. But as to “land belonging to the Tribe or held by the United States in trust for the Tribe,” we “readily agree[d]” that a Tribe may “prohibit nonmembers from hunting or fishing... [or] condition their entry by charging a fee or establish bag and creel limits.” Id., at 557. We had no occasion to decide whether a Tribe may only exercise this authority in a manner permitted by a State. On numerous occasions this Court has considered the question whether a State may assert authority over a reservation. The decision in Worcester v. Georgia, 6 Pet. 515, 560 (1832), reflected the view that Indian tribes were wholly distinct nations within whose boundaries “the laws of [a State] can have no force.” We long ago departed from the “conceptual clarity of Mr. Chief Justice Marshall’s view in Worcester,” Mescolero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973), and have acknowledged certain limitations on tribal sovereignty. For instance, we have held that Indian tribes have been implicitly divested of their sovereignty in certain respects by virtue of their dependent status, that under certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and that in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members. Nevertheless, in demarcating the respective spheres of state and tribal authority over Indian reservations, we have continued to stress that Indian tribes are unique aggregations possessing “ ‘attributes of sovereignty over both their members and their territory,’” White Mountain Apache Tribe v. Bracket, 448 U. S. 136, 142 (1980), quoting United States v. Mazurie, 419 U. S. 544, 557 (1975). Because of their sovereign status, tribes and their reservation lands are insulated in some respects by a “historic immunity from state and local control,” Mescalero Apache Tribe v. Jones, supra, at 152, and tribes retain any aspect of their historical sovereignty not “inconsistent with the overriding interests of the National Government.” Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 153 (1980). The sovereignty retained by tribes includes “the power of regulating their internal and social relations,” United States v. Kagama, 118 U. S. 375, 381-382 (1886), cited in United States v. Wheeler, 435 U. S. 313, 322 (1978). A tribe’s power to prescribe the conduct of tribal members has never been doubted, and our cases establish that “ ‘absent governing Acts of Congress,’ ” a State may not act in a manner that “ ‘infringe[s] on the right of reservation Indians to make their own laws and be ruled by them.’” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 171-172 (1973), quoting Williams v. Lee, 358 U. S. 217, 219-220 (1959). See also Fisher v. District Court, 424 U. S. 382, 388-389 (1976) (per curiam). A tribe’s power to exclude nonmembers entirely or to condition their presence on the reservation is equally well established. See, e. g., Montana v. United States, 450 U. S. 544 (1981); Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982). Whether a State may also assert its authority over the on-reservation activities of nonmembers raises “[m]ore difficult questions,” Bracker, supra, at 144. While under some circumstances a State may exercise concurrent jurisdiction over non-Indians acting on tribal reservations, see, e. g., Washington v. Confederated Tribes, supra; Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), such authority may be asserted only if not pre-empted by the operation of federal law. See, e. g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U. S. 832 (1982); Bracker, supra; Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S. 160 (1980); Williams v. Lee, supra; Warren Trading Post v. Arizona Tax Comm’n, 380 U. S. 685 (1965); Fisher v. District Court, supra; Kennerly v. District Court of Montana, 400 U. S. 423 (1971). In Bracker we reviewed our prior decisions concerning tribal and state authority over Indian reservations and extracted certain principles governing the determination whether federal law pre-empts the assertion of state authority over nonmembers on a reservation. We stated that that determination does not depend “on mechanical or absolute conceptions of state or tribal sovereignty, but call[s] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake.” 448 U. S., at 145. We also emphasized the special sense in which the doctrine of pre-emption is applied in this context. See id., at 143-144; Ramah Navajo School Bd., supra, at 838. Although a State will certainly be without jurisdiction if its authority is pre-empted under familiar principles of pre-emption, we cautioned that our prior cases did not limit pre-emption of state laws affecting Indian tribes to only those circumstances. “The unique historical origins of tribal sovereignty” and the federal commitment to tribal self-sufficiency and self-determination make it “treacherous to import... notions of pre-emption that are properly applied to... other [contexts].” Bracker, supra, at 143. See also Ramah Navajo School Bd., supra, at 838. By resting pre-emption analysis principally on a consideration of the nature of the competing interests at stake, our cases have rejected a narrow focus on congressional intent to pre-empt state law as the sole touchstone. They have also rejected the proposition that pre-emption requires “‘an express congressional statement to that effect.’” Bracket, supra, at 144 (footnote omitted). State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority. Bracket, supra, at 145. See also Ramah Navajo School Bd., supra, at 845, quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941). Certain broad considerations guide our assessment of the federal and tribal interests. The traditional notions of Indian sovereignty provide a crucial “backdrop,” Bracket, supra, at 143, citing McClanahan, supra, at 172, against which any assertion of state authority must be assessed. Moreover, both the tribes and the Federal Government are firmly committed to the goal of promoting tribal self-government, a goal embodied in numerous federal statutes. We have stressed that Congress’ objective of furthering tribal self-government encompasses far more than encouraging tribal management of disputes between members, but includes Congress’ overriding goal of encouraging “tribal self-sufficiency and economic development.” Bracket, 448 U. S., at 143 (footnote omitted). In part as a necessary implication of this broad federal commitment, we have held that tribes have the power to manage the use of their territory and resources by both members and nonmembers, Merrion, supra, at 137; Bracket, supra, at 151; Montana v. United States, supra; 18 U. S. C. § 1162(b); 25 U. S. C. §§ 1321(b), 1322(b), to undertake and regulate economic activity within the reservation, Merrion, 455 U. S., at 137, and to defray the cost of governmental services by levying taxes. Ibid. Thus, when a tribe undertakes an enterprise under the authority of federal law, an assertion of state authority must be viewed against any interference with the successful accomplishment of the federal purpose. See generally Bracket, supra, at 143 (footnote omitted); Ramah Navajo School Bd., 458 U. S., at 845, quoting Hines v. Davidowitz, supra, at 67 (state authority precluded when it “'stands as an obstacle to the accomplishment of the full purposes and objectives of Congress’ ”). Our prior decisions also guide our assessment of the state interest asserted to justify state jurisdiction over a reservation. The exercise of state authority which imposes additional burdens on a tribal enterprise must ordinarily be justified by functions or services performed by the State in connection with the on-reservation activity. Ramah Navajo School Bd., supra, at 843, and n. 7; Bracker, supra, at 148-149; Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S., at 174 (Powell, J., dissenting). Thus a State seeking to impose a tax on a transaction between a tribe and nonmembers must point to more than its general interest in raising revenues. See, e. g., Warren Trading Post Co. v. Arizona, 380 U. S. 685 (1965); Bracket, supra; Ramah Navajo School Bd., supra. See also Confederated Tribes, 447 U. S., at 157 (“governmental interest in raising revenues is... strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services”); Moe, 425 U. S., at 481-483 (State may require tribal shops to collect state cigarette tax from nonmember purchasers). A State’s regulatory interest will be particularly substantial if the State can point to off-reservation effects that necessitate state intervention. Cf. Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (1977). HH H-4 » — I With these principles m mind, we turn to New Mexico’s claim that it may superimpose its own hunting and fishing regulations on the Mescalero Apache Tribe’s regulatory scheme. A It is beyond doubt that the Mescalero Apache Tribe lawfully exercises substantial control over the lands and resources of its reservation, including its wildlife. As noted supra, at 330, and as conceded by New Mexico, the sovereignty retained by the Tribe under the Treaty of 1852 includes its right to regulate the use of its resources by members as well as nonmembers. In Montana v. United States, we specifically recognized that tribes in general retain this authority. Moreover, this aspect of tribal sovereignty has been expressly confirmed by numerous federal statutes. Pub. L. 280 specifically confirms the power of tribes to regulate on-reservation hunting and fishing. 67 Stat. 588, 18 U. S. C. § 1162(b); see also 25 U. S. C. § 1321(b). This authority is afforded the protection of the federal criminal law by 18 U. S. C. § 1165, which makes it a violation of federal law to enter Indian land to hunt, trap, or fish without the consent of the tribe. See Montana v. United States, 450 U. S., at 562, n. 11. The 1981 Amendments to the Lacey Act, 16 U. S. C. § 3371 et seq. (1976 ed., Supp. Y), further accord tribal hunting and fishing regulations the force of federal law by making it a federal offense “to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife... taken or possessed in violation of any... Indian tribal law.” § 3372(a)(1). B Several considerations strongly support the Court of Appeals’ conclusion that the Tribe’s authority to regulate hunting and fishing pre-empts state jurisdiction. It is important to emphasize that concurrent jurisdiction would effectively nullify the Tribe’s authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations. The State would be able to dictate the terms on which nonmembers are permitted to utilize the reservation’s resources. The Tribe would thus exercise its authority over the reservation only at the sufferance of the State. The tribal authority to regulate hunting and fishing by nonmembers, which has been repeatedly confirmed by federal treaties and laws and which we explicitly recognized in Montana v. United States, supra, would have a rather hollow ring if tribal authority amounted to no more than this. Furthermore, the exercise of concurrent state jurisdiction in this case would completely “disturb and disarrange,” Warren Trading Post Co. v. Arizona Tax Comm’n, supra, at 691, the comprehensive scheme of federal and tribal management established pursuant to federal law. As described supra, at 326, federal law requires the Secretary to review each of the Tribe’s hunting and fishing ordinances. Those ordinances are based on the recommendations made by a federal range conservationist employed by the Bureau of Indian Affairs. Moreover, the Bureau of Sport Fisheries and Wildlife stocks the reservation’s waters based on its own determinations concerning the availability of fish, biological requirements, and the fishing pressure created by on-reservation fishing. App. 71a. Concurrent state jurisdiction would supplant this regulatory scheme with an inconsistent dual system: members would be governed by tribal ordinances, while nonmembers would be regulated by general state hunting and fishing laws. This could severely hinder the ability of the Tribe to conduct a sound management program. Tribal ordinances reflect the specific needs of the reservation by establishing the optimal level of hunting and fishing that should occur, not simply a maximum level that should not be exceeded. State laws in contrast are based on considerations not necessarily relevant to, and possibly hostile to, the needs of the reservation. For instance, the ordinance permitting a hunter to kill a buck and a doe was designed to curb excessive growth of the deer population on the reservation. Id,., at 153a-154a. Enforcement of the state regulation permitting only buck to be killed would frustrate that objective. Similarly, by determining the tribal hunting seasons, bag limits, and permit availability, the Tribe regulates the duration and intensity of hunting. These determinations take into account numerous factors, including the game capacity of the terrain, the range utilization of the game animals, and the availability of tribal personnel to monitor the hunts. Permitting the State to enforce different restrictions simply because they have been determined to be appropriate for the State as a whole would impose on the Tribe the possibly insurmountable task of ensuring that the patchwork application of state and tribal regulations remains consistent with sound management of the reservation’s resources. Federal law commits to the Secretary and the Tribal Council the responsibility to manage the reservation’s resources. It is most unlikely that Congress would have authorized, and the Secretary would have established, financed, and participated in, tribal management if it were thought that New Mexico was free to nullify the entire arrangement. Requiring tribal ordinances to yield whenever state law is more restrictive would seriously “undermine the Secretary’s [and the Tribe’s] ability to make the wide range of determinations committed to [their] authority.” Bracker, 448 U. S., at 149. See Fisher v. District Court, 424 U. S., at 390; United States v. Mazurie, 419 U. S. 544 (1975). The assertion of concurrent jurisdiction by New Mexico not only would threaten to disrupt the federal and tribal regulatory scheme, but also would threaten Congress’ overriding objective of encouraging tribal self-government and economic development. The Tribe has engaged in a concerted and sustained undertaking to develop and manage the reservation’s wildlife and land resources specifically for the benefit of its members. The project generates funds for essential tribal services and provides employment for members who reside on the reservation. This case is thus far removed from those situations, such as on-reservation sales outlets which market to nonmembers goods not manufactured by the tribe or its members, in which the tribal contribution to an enterprise is de minimis. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 154-159. The tribal enterprise in this case clearly involves “value generated on the reservation by activities involving the Trib[e].” Id., at 156-157. The disruptive effect that would result from the assertion of concurrent jurisdiction by New Mexico would plainly “‘stan[d] as an obstacle to the accomplishment of the full purposes and objectives of Congress/” Ramah Navajo School Bd., 458 U. S., at 845, quoting Hines v. Davidowitz, 312 U. S., at 67. C The State has failed to “identify any regulatory function or service... that would justify” the assertion of concurrent regulatory authority. Bracker, supra, at 148. The hunting and fishing permitted by the Tribe occur entirely on the reservation. The fish and wildlife resources are either native to the reservation or were created by the joint efforts of the Tribe and the Federal Government. New Mexico does not contribute in any significant respect to the maintenance of these resources, and can point to no other “governmental functions it provides,” Ramah Navajo School Bd., supra, at 843, in connection with hunting and fishing on the reservation by nonmembers that would justify the assertion of its authority. The State also cannot point to any off-reservation effects that warrant state intervention. Some species of game never leave tribal lands, and the State points to no specific interest concerning those that occasionally do. Unlike Puyallup Tribe w Washington Game Dept., this is not a case in which a treaty expressly subjects a tribe’s hunting and fishing rights to the common rights of nonmembers and in which a State’s interest in conserving a scarce, common supply justifies state intervention. 433 U. S., at 174, 175-177. The State concedes that the Tribe’s management has “not had an adverse impact on fish and wildlife outside the Reservation.” App. to Brief in Opposition 35a. We recognize that New Mexico may be deprived of the sale of state licenses to nonmembers who hunt and fish on the reservation, as well as some federal matching funds calculated in part on the basis of the number of state licenses sold. However, any financial interest the State might have in this case is simply insufficient to justify the assertion of concurrent jurisdiction. The loss of revenues to the State is likely to be insubstantial given the small numbers of persons who purchase tribal hunting licenses. Moreover, unlike Confederated Tribes, supra, and Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), the activity involved here concerns value generated on the reservation by the Tribe. Finally, as already noted supra, at 342, the State has pointed to no services it has performed in connection with hunting and fishing by nonmembers which justify imposing a tax in the form of a hunting and fishing license, Ramah Navajo School Bd., supra, at 843; Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S., at 174 (Powell, J., dissenting), and its general desire to obtain revenues is simply inadequate to justify the assertion of concurrent jurisdiction in this case. See Bracker, 448 U. S., at 150; Ramah Navajo School Bd., supra, at 845. IV In this case the governing body of an Indian Tribe, working closely with the Federal Government and under the authority of federal law, has exercised its lawful authority to develop and manage the reservation’s resources for the benefit of its members. The exercise of concurrent jurisdiction by the State would effectively nullify the Tribe’s unquestioned authority to regulate the use of its resources by members and nonmembers, interfere with the comprehensive tribal regulatory scheme, and threaten Congress’ firm commitment to the encouragement of tribal self-sufficiency and economic development. Given the strong interests favoring exclusive tribal jurisdiction and the absence of state interests which justify the assertion of concurrent authority, we conclude that the application of the State’s hunting and fishing laws to the reservation is pre-empted. Accordingly, the judgment of the Court of Appeals is Affirmed. See 1 C. Kappler, Indian Affairs Laws and Treaties 870-873 (1904). The final boundaries were fixed by the Executive Order of Mar. 24, 1883 (Order of President Arthur). Portions of the reservation were briefly included in a National Forest, but were restored to the Mescalero Reservation by the Executive Order of Feb. 17, 1912 (Order of President Taft). An intervening Executive Order of Mar. 1, 1910, issued by President Taft exempted from the reservation two “small holdings claims” covering settlements located before the establishment of the reservation. The Tribe has since purchased all but 23.8 acres of the land covered by these claims. These lands comprise the 23.8 acres remaining of the “small holdings claims,” see n. 1, supra; 10 acres granted to St. Joseph’s Catholic Church by the Act of Mar. 29,1928, ch. 299, 45 Stat. 1716; and the unimproved and unoccupied 160-acre “Dodson Tract” in the northwest portion of the reservation. See Brief for United States as Amicus Curiae 2, n. 3. Financing for the complex, the Inn of the Mountain Gods, came principally from the Economic Development Administration (EDA), an agency of the United States Department of Commerce, and other federal sources. In addition, the Tribe obtained a $6 million loan from the Bank of New Mexico, 90% of which was guaranteed by the Secretary of the Interior under the Indian Financing Act of 1974, 25 U	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.	What is the agency involved in the administrative action?	[ "Army and Air Force Exchange Service", "Atomic Energy Commission", "Secretary or administrative unit or personnel of the U.S. Air Force", "Department or Secretary of Agriculture", "Alien Property Custodian", "Secretary or administrative unit or personnel of the U.S. Army", "Board of Immigration Appeals", "Bureau of Indian Affairs", "Bureau of Prisons", "Bonneville Power Administration", "Benefits Review Board", "Civil Aeronautics Board", "Bureau of the Census", "Central Intelligence Agency", "Commodity Futures Trading Commission", "Department or Secretary of Commerce", "Comptroller of Currency", "Consumer Product Safety Commission", "Civil Rights Commission", "Civil Service Commission, U.S.", "Customs Service or Commissioner or Collector of Customs", "Defense Base Closure and REalignment Commission", "Drug Enforcement Agency", "Department or Secretary of Defense (and Department or Secretary of War)", "Department or Secretary of Energy", "Department or Secretary of the Interior", "Department of Justice or Attorney General", "Department or Secretary of State", "Department or Secretary of Transportation", "Department or Secretary of Education", "U.S. Employees' Compensation Commission, or Commissioner", "Equal Employment Opportunity Commission", "Environmental Protection Agency or Administrator", "Federal Aviation Agency or Administration", "Federal Bureau of Investigation or Director", "Federal Bureau of Prisons", "Farm Credit Administration", "Federal Communications Commission (including a predecessor, Federal Radio Commission)", "Federal Credit Union Administration", "Food and Drug Administration", "Federal Deposit Insurance Corporation", "Federal Energy Administration", "Federal Election Commission", "Federal Energy Regulatory Commission", "Federal Housing Administration", "Federal Home Loan Bank Board", "Federal Labor Relations Authority", "Federal Maritime Board", "Federal Maritime Commission", "Farmers Home Administration", "Federal Parole Board", "Federal Power Commission", "Federal Railroad Administration", "Federal Reserve Board of Governors", "Federal Reserve System", "Federal Savings and Loan Insurance Corporation", "Federal Trade Commission", "Federal Works Administration, or Administrator", "General Accounting Office", "Comptroller General", "General Services Administration", "Department or Secretary of Health, Education and Welfare", "Department or Secretary of Health and Human Services", "Department or Secretary of Housing and Urban Development", "Administrative agency established under an interstate compact (except for the MTC)", "Interstate Commerce Commission", "Indian Claims Commission", "Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement", "Internal Revenue Service, Collector, Commissioner, or District Director of", "Information Security Oversight Office", "Department or Secretary of Labor", "Loyalty Review Board", "Legal Services Corporation", "Merit Systems Protection Board", "Multistate Tax Commission", "National Aeronautics and Space Administration", "Secretary or administrative unit or personnel of the U.S. Navy", "National Credit Union Administration", "National Endowment for the Arts", "National Enforcement Commission", "National Highway Traffic Safety Administration", "National Labor Relations Board, or regional office or officer", "National Mediation Board", "National Railroad Adjustment Board", "Nuclear Regulatory Commission", "National Security Agency", "Office of Economic Opportunity", "Office of Management and Budget", "Office of Price Administration, or Price Administrator", "Office of Personnel Management", "Occupational Safety and Health Administration", "Occupational Safety and Health Review Commission", "Office of Workers' Compensation Programs", "Patent Office, or Commissioner of, or Board of Appeals of", "Pay Board (established under the Economic Stabilization Act of 1970)", "Pension Benefit Guaranty Corporation", "U.S. Public Health Service", "Postal Rate Commission", "Provider Reimbursement Review Board", "Renegotiation Board", "Railroad Adjustment Board", "Railroad Retirement Board", "Subversive Activities Control Board", "Small Business Administration", "Securities and Exchange Commission", "Social Security Administration or Commissioner", "Selective Service System", "Department or Secretary of the Treasury", "Tennessee Valley Authority", "United States Forest Service", "United States Parole Commission", "Postal Service and Post Office, or Postmaster General, or Postmaster", "United States Sentencing Commission", "Veterans' Administration or Board of Veterans' Appeals", "War Production Board", "Wage Stabilization Board", "State Agency", "Unidentifiable", "Office of Thrift Supervision", "Department of Homeland Security", "Board of General Appraisers", "Board of Tax Appeals", "General Land Office or Commissioners", "NO Admin Action", "Processing Tax Board of Review" ]	[ 116 ]	sc_adminaction

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