source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Douglas,

license: Public Domain

text:
    NACIREMA OPERATING CO., INC., et al. v. JOHNSON et al.
    No. 9.
    Argued March 25, 1969—Reargued October 20, 1969
    Decided December 9, 1969

      Randall C. Coleman argued the cause for petitioners in No. 9 on the original argument and on the reargument. With him on the briefs was William B. Eley. Solicitor General Grisivold argued the cause for petitioners in No. 16 on the original argument and on the reargument. With him on the brief were Assistant Attorney General Ruckelshaus and Lawrence G. Wallace.

      John J. O’Connor, Jr., argued the cause and filed briefs for respondents Johnson et al. on the original argument and on the reargument in both cases. Ralph Rabinowitz argued the cause and filed a brief for respondent Avery-on the original argument and on the reargument in both cases.

      E. D. Vickery, Francis A. Scanlan, Scott H. Elder, and J. Stewart Harrison filed a brief for the National Maritime Compensation Committee as amicus curiae urging reversal in both cases.
    Briefs of amici curiae urging affirmance in both cases were filed by Louis Waldman and Seymour M. Waldman for the International Longshoremen’s Association, AFL-CIO, and by Paul S. Edelman for the American Trial Lawyers Association.

       Together with No. 16, Traynor et al., Deputy Commissioners v. Johnson et al., also on certiorari to the same court.

   Mr. Justice White

delivered the opinion of the Court.

The single question of statutory construction presented by these cases is whether injuries to longshoremen occurring on piers permanently affixed to shore are compen-sable under the Longshoremen’s and Harbor Workers’ Compensation Act of 1927 (Longshoremen’s Act), 44 Stat. 1424, 33 U. S. C. §§ 901-950.

Johnson and Klosek were employed by the Nacirema Operating Company as longshoremen; Avery was similarly employed by the Old Dominion Stevedoring Corporation. All three men were engaged at the time of their accidents in performing similar operations as “slingers,” attaching cargo from railroad cars located on piers to ships’ cranes for removal to the ships. Klosek was killed, and each of the other men was injured, when cargo hoisted by the ship’s crane swung back and knocked him to the pier or crushed him against the side of the railroad car. Deputy Commisioners of the United States Department of Labor denied claims for compensation in each case on the ground that the injuries had not occurred “upon the navigable waters of the United States” as required by the Act. The District Courts upheld the Deputy Commissioners’ decisions. 243 E. Supp. 184 (D. C. Md. 1965); 245 F. Supp. 51 (D. C. E. D. Va. 1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed. 398 F. 2d 900 (1968). We granted certiorari, 393 U. S. 976 (1968), to resolve the resulting conflict with decisions in other circuits holding that pier injuries are not covered by the Act. We have concluded from an examination of the language, purpose, and legislative history of the Act, as well as prior decisions of this Court, that the judgment of the Court of Appeals must be reversed.

Since long before the Longshoremen’s Act was passed, it has been settled law that structures such as wharves and piers, permanently affixed to land, are extensions of the land. Thus, literally read, a statute that covers injuries “upon the navigable waters” would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters.

Respondents urge, however, that the 1927 Act, though it employs language that determines coverage by the “situs” of the injury, was nevertheless aimed at broader coverage: coverage of the “status” of the longshoreman employed in performing a maritime contract. We do not agree. Congress might have extended coverage to all longshoremen by exercising its power over maritime contracts. But the language of the Act is to the contrary and the background of the statute leaves little doubt that Congress’ concern in providing compensation was a narrower one.

Ten years before the Act was passed this Court in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), held that a State was without power to extend a compensation remedy to a longshoreman injured on the gangplank between the ship and the pier. The decision left longshoremen injured on the seaward side of the pier without a compensation remedy, while longshoremen injured on the pier enjoyed the protection of state compensation acts. State Industrial Commission v. Nordenholt Corp., 259 U. S. 263 (1922).

Twice Congress attempted to fill this gap by passing legislation that would have extended state compensation remedies beyond the line drawn in Jensen. Each time, this Court struck down the statute as an unlawful delegation of congressional power. Washington v. Dawson & Co., 264 U. S. 219 (1924); Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920). Finally, responding to this Court’s suggestion that what Congress could not empower the States to do, it could do itself, Congress passed the Longshoremen’s Act. The clear implication is that in enacting its own compensation statute, Congress w.as trying to do what it had failed to do in earlier attempts: to extend a compensation remedy to workmen injured beyond the pier and hence beyond the jurisdiction of the States. This purpose was clearly expressed in the language limiting coverage to injuries occurring “upon the navigable waters/’ and permitting recovery only “if recovery . . . through workmen’s compensation proceedings may not validly be provided by State law.”

This conclusion is fully supported by the legislative history. As originally drafted, § 3 extended coverage to injuries “on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce.” During the hearings, it was repeatedly emphasized and apparently assumed by representatives from both the shipping industry and the unions that a “place within the admiralty jurisdiction” did not include a dock or pier. In fact, a representative of the Labor Department objected to the bill precisely for that reason, urging the Committee to extend coverage to embrace the contract, “and not the man simply when he is on the ship.” If Congress had intended to adopt that suggestion, it could not have chosen a more inappropriate way of expressing its intent than by substituting the words “upon the navigable waters” for the words “within the admiralty jurisdiction.” Indeed, the Senate Report that accompanied the revised bill, containing the language of the present Act, makes clear that the suggestion was rejected, rather than adopted: “[Ijnjuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States.” S. Rep. No. 973, 69th Cong., 1st Sess., 16. We decline to ignore these explicit indications of a design to provide compensation only beyond the pier where the States could not reach. “That is the gap that we are trying to fill.” In filling that gap Congress did not extend coverage to longshoremen like those respondents whose injuries occurred on the landward side of the Jensen line, clearly entitling them to protection under state compensation Acts.

Decisions of this Court have more than once embraced this interpretation. Swanson v. Marra Bros., Inc., 328 U. S. 1 (1946), held that neither the Jones Act nor the Longshoremen’s Act covered a longshoreman injured on the dock in the course of his employment even if the injury was caused by a vessel on navigable waters. Parker v. Motor Boat Sales, 314 U. S. 244, 249 (1941), concluded that the purpose of the Act “was to provide for federal compensation in the area which the specific decisions referred to placed beyond the reach of the states.” Davis v. Dept. of Labor & Industries, 317 U. S. 249, 256 (1942), noted that in passing the Longshoremen’s Act, Congress had specifically adopted the Jensen line. The interpretation endorsed by these cases is also reflected in a consistent course of administrative construction commencing immediately after the enactment of the Act. Employees’ Compensation Commission Opinions Nos. 5 and 16, 1927 A. M. C. 1558 and 1855; No. 30, 1928 A. M. C. 417.

It is true that since Jensen this Court has permitted recovery under state remedies in particular situations seaward of the pier, Parker v. Motor Boat Sales, supra, and in Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962), approved recovery under - the Longshoremen’s Act for injuries occurring on navigable waters which might also have been compensable under state law. Calbeck made it clear that Congress intended to exercise its full jurisdiction seaward of the Jensen line and to cover all injuries on navigable waters, whether or not state compensation was also available in particular situations. The proviso to § 3 (a) conditioning coverage on the unavailability of state remedies was not meant to deny federal relief where the injury occurred on navigable waters. But removing uncertainties as to the Act’s coverage of injuries occurring on navigable waters is a far cry from construing the Act to reach injuries on land traditionally within the ambit of state compensation acts.

Indeed, Calbeck freely cited the Parker and Davis declarations that the Longshoremen’s Act adopted the Jensen line, and Calbeck’s holding rejected the notion that the line should advance or recede simply because decisions of this Court had permitted state remedies in narrow areas seaward of that line. Otherwise, the reach of the federal Act would be subject to uncertainty, and its coverage would “expand and recede in harness with developments in constitutional interpretation as to the scope of state power to compensate injuries on navigable waters,” with the result “that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies . . . .” 370 U. S., at .126. As in Calbeck, we refuse to impute to Congress the intent of burdening the administration of compensation by perpetuating such confusion.

Nor can we agree that what Congress did not do in 1927, it did in 1948 when it passed the Extension of Admiralty Jurisdiction Act (Extension Act), 62 Stat. 496, 46 U. S. C. § 740. In pertinent part, that Act provides:

“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.”

By its very choice of language, the Act re-enforces the conclusion that Congress was well aware of the distinction between land injuries and water injuries and that when it limited recovery to injuries on navigable waters, it did not mean injuries on land. The Act no doubt extended the admiralty tort jurisdiction to ship-caused injuries on a pier. But far from modifying the clear understanding in the law that a pier was an extension of land and that a pier injury was not on navigable waters but on land, the Act accepts that rule and nevertheless declares such injuries to be maritime torts if caused by a vessel on navigable waters.

The Extension Act was passed to remedy the completely different problem that arose from the fact that parties aggrieved by injuries done by ships to bridges, docks, and the like could not get into admiralty at all. There is no evidence that Congress thereby intended to amend or affect the coverage of the Longshoremen’s Act or to overrule Swanson v. Marra Bros., supra, decided just two years earlier. While the Extension Act may have the effect of permitting respondents to maintain an otherwise unavailable libel in admiralty, see Gutierrez v. Waterman S. S. Corp., 373 U. S. 206 (1963), the Act has no bearing whatsoever on their right to a compensation remedy under the Longshoremen’s Act.

There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen’s Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen’s Act to coincide with the limits of admiralty jurisdiction — whatever they may be and however they may change — simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court.

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Black and Mr. Justice Brennan concur,

dissenting.

We dissent for the reasons stated by Judge Sobeloff speaking for the Court of Appeals sitting en banc. 398 F. 2d 900. As he says, the Longshoremen’s and Harbor Workers’ Compensation Act is not restricted to conventional “admiralty tort jurisdiction” but is “status oriented, reaching all injuries sustained by longshoremen in the course of their employment.” Id., at 904. The matter should be at rest after Calbeck v. Travelers Insurance Co., 370 U. S. 114. In that suit under this Act we said that “ ‘Congress intended the compensation act to have a coverage co-extensive with the limits of its authority.’” Id., at 130, quoting from De Bardeleben Coal Corp. v. Henderson, 142 F. 2d 481, 483. Judge Sobeloff in the instant cases, while answering the argument that Calbeck was not concerned with the meaning of “upon the navigable waters,” referred to Judge Palmieri’s opinion in Michigan Mutual Liability Co. v. Arrien, 233 F. Supp. 496, 600, aff’d, 344 F. 2d 640:

“What is just as important as the actual holding in Calbeck is the general approach to the [Longshoremen’s Compensation] Act taken by the Court. No longer is the Act viewed as merely filling in the interstices around the shore line of the state acts, but rather as an affirmative exercise of admiralty jurisdiction.”

Judge Sobeloff went on to say:

“This affirmative exercise of the admiralty power of Congress ‘to the fullest extent’ of its jurisdiction, creating ‘a coverage co-extensive with the limits of its authority,’ can only mean that Congress effectively enacted a law to protect all who could constitutionally be brought within the ambit of its maritime authority. Again, in the words of Judge Palmieri, ‘it thus appears that “upon navigable waters” is to be equated with “admiralty jurisdiction.” ’ ” 398 F. 2d, at 905.

In addition to the cases being reviewed here, the Court of Appeals affirmed a judgment in favor of the widow of a longshoreman (238 F. Supp. 78), who, while working on the pier, was struck by a cable and knocked into the water where he died. It is incongruous to us that in an accident on a pier over navigable waters coverage of the Act depends on where the body falls after the accident has happened. For this and the other reasons stated by Judge Sobeloff, we dissent from a reversal of these judgments.

       The piers involved extended from shore into the Patapsco River at Sparrows Point, Maryland, and into the Elizabeth River at Norfolk, Virginia.

       §3 (a) of the Act, 33 U. S. C. §903 (a), provides in relevant part:
      “(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. . . .”

       The three cases were consolidated on appeal. In a fourth case, an award to a longshoreman who had drowned after being knocked off a pier into the water was affirmed by the District Court and the Court of Appeals. Marine Stevedoring Corp. v. Oosting, 238 F. Supp. 78 (D. C. E. D. Va. 1965).

         Nicholson v. Calbeck, 385 F. 2d 221 (C. A. 5th Cir. 1967), cert. denied, 389 U. S. 1051 (1968); Houser v. O’Leary, 383 F. 2d 730 (C. A. 9th Cir. 1967), cert. denied, 390 U. S. 954 (1968); Travelers Insurance Co. v. Shea, 382 F. 2d 344 (C. A. 5th Cir. 1967), cert. denied sub nom. McCollough v. Travelers Insurance Co., 389 U. S. 1050 (1968); Michigan Mutual Liability Co. v. Arrien, 344 F. 2d 640 (C. A. 2d Cir.), cert. denied, 382 U. S. 835 (1965).

        Swanson v. Marra Bros., Inc., 328 U. S. 1 (1946); Minnie v. Port Huron Terminal Co., 295 U. S. 647 (1935); T. Smith & Son, Inc. v. Taylor, 276 U. S. 179 (1928); State Industrial Commission v. Nordenholt Corp., 259 U. S. 263 (1922); Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., 208 U. S. 316 (1908); The Plymouth, 3 Wall. 20 (1866); 1 E. Benedict, The Law of American Admiralty §§ 28, 29 (6th ed. 1940); G. Gilmore & C. Black, The Law of Admiralty §§ 6-46, 7-17 (1957); G. Robinson, Handbook of Admiralty Law in the United States § 11 (1939).

       We reject the alternative holding of the Court of Appeals that all injuries on these piers, despite settled doctrine to the contrary, may now be considered injuries on navigable waters — a proposition rejected implicitly by a unanimous Court just last Term. See Rodrigue v. Aetna Casualty Co., 395 U. S. 352, 360, 366 (1969). Piers, like bridges, are not transformed from land structures into floating structures by the mere fact that vessels may pass beneath them.

       The admiralty jurisdiction in tort was traditionally “bounded by locality,” De Lovio v. Boit, 7 F. Cas. 418, 444 (No. 3776) (C. C. D. Mass. 1815) (Story, J.) (followed in Insurance Co. v. Dunham, 11 Wall. 1 (1871)), encompassing all torts that took place on navigable waters. By contrast, admiralty contract jurisdiction “extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations,) which relate to the navigation, business or commerce of the sea.” De Lovio v. Boit, supra, at 444. Since a workmen’s compensation act combines elements of both tort and contract, Congress need not have tested coverage by locality alone. As the text indicates, however, the history of the Act shows that Congress did indeed do just that.

       Act of October 6, 1917, 40 Stat. 395; Act of June 10, 1922, 42 Stat. 634.

        Washington v. Dawson & Co., 264 U. S. 219, 227 (1924). The passage from Dawson & Co. was referred to in the hearings in both the Senate and the House. See Hearings on S. 3170 before a Subcommittee of the Senate Committee on the Judiciary, 69th Cong., 1st Sess., 18, 31, 103 and n. 3 (1926) (hereinafter “Senate Hearings”) ; Hearing on H. R. 9498 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pp. 18, 119 and n. 3 (1926) (hereinafter “House Hearing”).

       Drydocks were conceded to be within the admiralty jurisdiction in both the hearings and the debates, even though such structures are not always floating structures. See House Hearing 34; 68 Cong. Rec. 5403 (1927). If Congress had thought the words “upon the navigable waters” were broad enough to embrace the limits of admiralty jurisdiction, there would have been no need to add the parenthetical “(including any dry dock).”

       See Senate Hearings 2.

       Mr. Dempsey, representing the International Longshoremen’s Association, testified that the bill would cover injuries on the dock as well as on the ship. When pressed as to how injuries on the dock could come within the admiralty jurisdiction, he confessed he did not understand the legal theory, and would defer to the longshoremen’s attorney, Mr. Austin. Mr. Austin proceeded to testify: that the dock was not within the admiralty jurisdiction; that injuries on the dock were compensable under state law; that the problem arose because the longshoreman was left “high and dry” once he left the State’s jurisdiction and stepped on the gangplank; and that “[t]hat is the gap that we are trying to fill . . . .” Senate Hearings 28, 30-31. Testimony that longshoremen injured on the docks would not be covered by the Act also came from representatives of the shipbuilders. See Senate Hearings 68, 95, 103. See also n. 15, infra; Hearing on S. 3170 before the House Committee on the Judiciary, 69tb Cong., 1st Sess., ser. 16, pt. 2, pp. 141, 157 (1926) (testimony on the revised bill, containing the language of the present §3).

       Senate Hearings 40.

       While the reason for the change in the language concerning the bill’s coverage is not expressly indicated, it appears to have been a response to objections that the original language, carving out an exception for employment of “local concern,” was too vague to define clearly the line being drawn, and might even encounter problems once again at the hands of this Court. See Senate Hearings 56-57, 95; House Hearing 77, 100. In fact, the same spokesman for the shipbuilders who objected to the vagueness of the “local concern” exception, also objected that the bill as written might “upset all the present arrangements with respect to compensating men on the dock.” Senate Hearings 57. The implication is that no one expected the federal law to extend into the area of the State’s jurisdiction on the dock, but that confusion existed as to whether, conversely, state remedies would be exclusive as to injuries “on navigable waters” but within the “maritime but local” exception created by Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 (1922). This reading of the legislative history was adopted in Calbeck v. Travelers Insurance Co., 370 U. S. 114, 121-127 (1962), where the Court concluded that the Act did not prevent recovery for injuries on navigable waters, even though a state remedy would also have been available under Rohde.

       See n. 12, supra. Other indications that Congress had no intention of replacing or overlapping state compensation- remedies for dockside injuries can be found throughout the hearings. At one point, in attempting to calculate the increased costs involved in the federal Act, Senator Cummins, Chairman of the Committee, pointed out that “we are proceeding on the theory that these people can not be compensated under the New York compensation law or any other compensation law.” “[T]he purpose of this law,” he agreed with a witness, was simply to cover the men who “are going to be exposed a part of the time on board vessels . . . and therefore will have to be compensated in some other way where the New York law is not the remedy available.” Senate Hearings 84-85. Similarly, Representative Graham, Chairman of the House Committee, agreed that “the real necessity for this legislation” was to provide workers with compensation when they stepped from dock to ship. House Hearing 25. In fact, the labor representative who was testifying at that point in the hearing insisted that the legislation sought was only for “[tjhose who are injured on board vessels at the dock.” Those injured on the dock “are taken care of under the State law.” Id., at 28. There was also testimony by a longshoremen's representative that “65 per cent of the accidents in the courts of New York happen on board ships or on gangplanks; . . . therefore . . . 65 per cent of the accidents of the men who are injured by performing this work will be compensable under this bill.” Id., at 35. See also id., at 44. Another noted that “our men that are working on the dock are protected, and well protected, under the New York compensation act, but our men on board ship are not protected. We feel that Congress wants to protect them . . . .” Senate Hearings 42.

       Both Johnson and Klosek’s widow and minor children have filed claims, and are concededly entitled to benefits, under the Maryland Workmen’s Compensation Act. Avery has already been awarded benefits under the Virginia Workmen’s Compensation Law.

       See Gilmore & Black, supra, n. 5, § 7-17.

       The legislative history of the Extension Act is devoid of any reference to the Longshoremen’s Act, as might well be expected in an Act dealing with a wholly unrelated problem. See S. Rep. No. 1593, 80th Gong., 2d Sess. (1948); H. R. Rep. No. 1523, 80th Cong., 2d Sess. (1948).
      The House Report accompanying the Extension Act notes that “the bill will not create new causes of action,” id., at 3, and the statute speaks of extending jurisdiction to suits “in rem or in per-sonam” for “damage” to “person or property” — concepts wholly at odds with the theory of workmen’s compensation — awards made in an administrative proceeding. The conclusion of the District Court is inescapable. “The two statutes do not deal with the same subject matter, are inherently inconsistent with each other, and cannot be read as being in pari materia.” 243 F. Supp. 184, 194 (1965).
      It is worth noting that a contemporaneous amendment of the Longshoremen’s Act contains no cross reference to the Extension Act. See Act of June 24, 1948, 62 Stat. 602 (a bill to increase benefits under the Longshoremen’s Act, passed five days after the Extension Act). And, a House Report dated July 28, 1958 — 10 years after enactment of the Extension Act — points out that employees “on the navigable waters of the United States” are covered under the Longshoremen’s Act, but are under state protection “when performing work on docks and in other shore areas.” H. R. Rep. No. 2287, 85th Cong., 2d Sess., 2 (accompanying a bill to provide safety programs for longshoremen).

       We were informed in argument that two of the parties have in fact already commenced actions against the shipowner.


author: Per Curiam.

text:
    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.


author:
Mr. Justice Douglas,
      Mr. Justice Harlan,

text:
    SULLIVAN et al. v. LITTLE HUNTING PARK, INC., et al.
    No. 33.
    Argued October 13, 1969
    Decided December 15, 1969

      See: 209 Va. 279,163 S. E. 2d 588.

      Allison W. Brown, Jr., argued the cause for petitioners. With him on the briefs were Peter Ames Eveleth, Robert M. Alexander, Jack Greenberg, and James M. Nabrit III.

      John Charles Harris argued the cause and filed a brief for respondents.
    Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, Louis F. Claiborne, Peter L. Strauss, and Joseph J. Connolly for the United States, and by Arnold Forster, Sol Rabkin, Melvin L. Wulf, Edwin J. Lukas, Samuel Rabinove, and Paul Hartman for the Anti-Defamation League of B’nai B’rith et al.
   Opinion of the Court by

Mr. Justice Douglas,

announced by Mr. Justice Black.

This case, which involves an alleged discrimination against a Negro family in the use of certain community facilities, has been here before. The Virginia trial court dismissed petitioners’ complaints and the Supreme Court of Appeals of Virginia denied the appeals saying that they were not perfected “in the manner provided by law in that opposing counsel was not given reasonable written notice of the time and place of tendering the transcript and a reasonable opportunity to examine the original or a true copy of it” under that court’s Rule 5:1, § 3(f).

The case came here and we granted the petition for certiorari and vacated the judgments and remanded the case to the Supreme Court of Appeals for further consideration in light of Jones v. Mayer Co., 392 U. S. 409. 392 U. S. 657. On the remand, the Supreme Court of Appeals restated its prior position stating, “We had no jurisdiction in the cases when they were here before, and we have no jurisdiction now. We adhere to our orders refusing the appeals in these cases.” 209 Va. 279, 163 S. E. 2d 588. We brought the case here the second time on a petition for certiorari. 394 U. S. 942.

I

When the ease was first here respondents opposed the petition, claiming that Rule 5:1, § 3 (f), was not complied with. Petitioners filed a reply brief addressing themselves to that question. Thus the point now tendered was fully exposed when the case was here before, though we ruled on it sub silentio.

In this case counsel for petitioners on June 9, 1967, gave oral notice to counsel for respondents that he was submitting the transcripts to the trial judge. He wrote counsel for respondents on the same day to the same effect, saying he was submitting the transcripts to the trial judge that day, filing motions to correct them, and asking the trial court to defer signing them for a ten-day period to allow counsel for respondents time to consent to the motions or have them otherwise disposed of by the court. The judge, being absent from his chambers on June 9, ruled that he had not received the transcripts until June 12. The motions to correct came on for a hearing June 16, at which time the judge ruled that he would not act on the motions until counsel for respondents had agreed or disagreed with the changes requested. After examining the transcripts between June 16 and June 19, counsel for respondents told counsel for petitioners that he had no objections to the corrections or to entry of orders granting the motions to correct. Counsel for respondents then signed the proposed orders which counsel for petitioners had prepared. The proposed orders were submitted to the trial judge on June 20; and on the same day he signed the transcripts, after they had been corrected.

As we read its cases, the Supreme Court of Appeals stated the controlling principle in the following language:

“The requirement that opposing counsel have a reasonable opportunity to examine the transcript sets out the purpose of reasonable notice. If, after receipt of notice, opposing counsel be afforded reasonable opportunity to examine the transcript, and to make objections thereto, if any he has, before it is signed by the trial judge, the object of reasonable notice will have been attained.” Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S. E. 2d 321, 326.

In that case opposing counsel had seven days to examine the record and make any objections. In the present case he had three days. But so far as the record shows he did not at the time complain that he was not given that “reasonable opportunity” he needed to examine and correct the transcripts.

Petitioners’ counsel does not urge — nor do we suggest — that the Virginia Supreme Court of Appeals has fashioned a novel procedural requirement for the first time in this case; cf. NAACP v. Alabama, 357 U. S. 449, 457-A58; past decisions of the state court refute any such notion. See Bacigalupo v. Fleming, supra; Bolin v. Laderberg, 207 Va. 795, 153 S. E. 2d 251; Cook v. Virginia Holsum Bakeries, 207 Va. 815, 153 S. E. 2d 209. But those same decisions do not enable us to say that the Virginia court has so consistently applied its notice requirement as to amount to a self-denial of the power to entertain the federal claim here presented if the Supreme Court of Appeals desires to do so. See Henry v. Mississippi, 379 U. S. 443, 455-457 (Black, J., dissenting). Such a rule, more properly deemed discretionary than jurisdictional, does not bar review here by certiorari.

II

Little Hunting Park, Inc., is a Virginia nonstock corporation organized to operate a community park and playground facilities for the benefit of residents in an area of Fairfax County, Virginia. A membership share entitles all persons in the immediate family of the shareholder to use the corporation’s recreation facilities. Under the bylaws a person owning a membership share is entitled when he rents his home to assign the share to his tenant, subject to approval of the board of directors. Paul E. Sullivan and his family owned a house in this area and lived in it. Later he bought another house in the area and leased the first one to T. R. Freeman, Jr., an employee of the U. S. Department of Agriculture; and assigned his membership share to Freeman. The board refused to approve the assignment because Freeman was a Negro. Sullivan protested that action and was notified that he would be expelled from the corporation by the board. A hearing was accorded him and he was expelled, the board tendering him cash for his two shares.

Sullivan and Freeman sued under 42 LT. S. C. §§ 1981, 1982 for injunctions and monetary damages. Since Freeman no longer resides in the area served by Little Hunting Park, Inc., his claim is limited solely to damages.

The trial court denied relief to each petitioner. We reverse those judgments.

In Jones v. Mayer Co., 392 U. S. 409, we reviewed at length the legislative history of 42 U. S. C. § 1982. We concluded that it reaches beyond state action and operates upon the unofficial acts of private individuals and that it is authorized by the Enabling Clause of the Thirteenth Amendment. We said:

“Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom— freedom to 'go and come at pleasure’ and to ‘buy and sell when they please’ — would be left with ‘a mere paper guarantee’ if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.” 392 U. S., at 443.

The Virginia trial court rested on its conclusion that Little Hunting Park was a private social club. But we find nothing of the kind on this record. There was no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race. See Daniel v. Paul, 395 U. S. 298, 301-302. What we have here is a device functionally comparable to a racially restrictive covenant, the judicial enforcement of which was struck down in Shelley v. Kraemer, 334 U. S. 1, by reason of the Fourteenth Amendment.

In Jones v. Mayer Co., the complaint charged a refusal to sell petitioner a home because he was black. In the instant case the interest conveyed was a leasehold of realty coupled with a membership share in a nonprofit company organized to offer recreational facilities to owners and lessees of real property in that residential area. It is not material whether the membership share be considered realty or personal property, as § 1982 covers both. Section 1982 covers the right “to inherit, purchase, lease, sell, hold, and convey real and personal property.” There is a suggestion that transfer on the books of the corporation of Freeman’s share is not covered by any of those verbs. The suggestion is without merit. There has never been any doubt but that Freeman paid part of his $129 monthly rental for the assignment of the membership share in Little Hunting Park. The transaction clearly fell within the “lease.” The right to “lease” is protected by § 1982 against the actions of third parties, as well as against the actions of the immediate lessor. Respondents’ actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman’s right to “lease.” A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived. See 392 U. S., at 422-437.

We turn to Sullivan’s expulsion for the advocacy of Freeman’s cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. That is why we said in Barrows v. Jackson, 346 U. S. 249, 259, that the white owner is at times “the only effective adversary” of the unlawful restrictive covenant. Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.

We noted in Jones v. Mayer Co., that the Fair Housing Title of the Civil Rights Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U. S., at 413-417. What we said there is adequate to dispose of the suggestion that the public accommodations provision of the Civil Rights Act of 1964, 78 Stat. 243, in some wTay supersedes the provisions of the 1866 Act. Fo,r the hierarchy of administrative machinery provided by the 1964 Act is not at war with survival of the principles embodied in § 1982. There is, moreover, a saving clause in the 1964 Act as respects “any right based on any other Federal . . . law not inconsistent” with that Act.

Section 1982 derived from the 1866 Act is plainly “not inconsistent” with the 1964 Act, which has been construed as not “pre-empting every other mode of protecting a federal ‘right’ or as granting immunity” to those who had long been subject to federal law. United States v. Johnson, 390 U. S. 563, 566.

We held in Jones v. Mayer Co. that although § 1982 is couched in declaratory terms and provides no explicit method of enforcement, a federal court has power to fashion an effective equitable remedy. 392 U. S., at 414, n. 13. That federal remedy for the protection of a federal right is available in the state court, if that court is empowered to grant injunctive relief generally, as is the Virginia court. Va. Code Ann. § 8-610 (1957 Repl. Vol.).

Finally, as to damages, Congress, by 28 U. S. C. § 1343 (4), created federal jurisdiction for “damages or ... equitable or other relief under any Act of Congress providing for the protection of civil rights . . . .” We reserved in Jones v. Mayer Co., 392 U. S., at 414-415, n. 14, the question of what damages, if any, might be appropriately recovered for a violation of § 1982.

We had a like problem in Bell v. Hood, 327 U. S. 678, where suit was brought against federal officers for alleged violations of the Fourth and Fifth Amendments. The federal statute did not in terms at least provide any remedy. We said:

“[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Id., at 684.

The existence of a statutory right implies the existence of all necessary and appropriate remedies. See Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548, 569-570. As stated in Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 39:

“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied . . . .”

Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U. S. C. § 1988, which states:

“The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . .

This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 293 F. 2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired. We do not explore the problem further, as the issue of damages was not litigated below.

It is suggested, not by any party, but by the dissent, that any relief should await proceedings under the fair housing provisions of Title VIII of the Civil Rights Act of 1968. 82 Stat. 81, 42 U. S. C. § 3601 et seq. (1964 ed., Supp. IV). But petitioners’ suits were commenced on March 16, 1966, two years before that Act was passed. It would be irresponsible judicial administration to dismiss a suit because of an intervening Act which has no possible application to events long preceding its enactment.

Reversed.

Mr. Justice Harlan,

with whom The Chief Justice and Mr. Justice White join,

dissenting.

In Jones v. Mayer Co., 392 U. S. 409 (1968), the Court decided that a little-used section of a 100-year-old statute prohibited private racial discrimination in the sale of real property. This construction of a very old statute, in no way required by its language, and open to serious question in light of the statute’s legislative history, seemed to me unnecessary and unwise because of the recently passed, but then not yet fully effective, Fair Housing Title of the Civil Rights Act of 1968 (hereafter Fair Housing Law). Today, the Court goes yet beyond Jones (1) by implying a private right to damages for violations of 42 U. S. C. § 1982; (2) by interpreting § 1982 to prohibit a community recreation association from withholding, on the basis of race, approval of an assignment of a membership that was transferred incident to a lease of real property; and (3) by deciding that a white person who is expelled from a recreation association “for the advocacy of [a Negro’s] cause” has “standing” to maintain an action for relief under § 1982.

Because the Fair Housing Law will become fully effective less than three weeks from now, I think the majority even more unwise than it was in Jones, in precipitately breathing still more life into § 1982, which is both vague and open-ended, when Congress has provided this modern statute, containing various detailed remedial provisions aimed at eliminating racial discrimination in housing. For this reason, which I elaborate in Part II, I would dismiss the writ in this case as improvidently granted. To provide examples of some of the difficulties the Court will inevitably encounter if it continues to employ § 1982 in these sorts of cases, I examine in Part III the undiscriminating manner in which the majority deals with, and for the most part ignores, the complexities involved in (1) giving Sullivan relief and (2) engrafting a damage remedy onto § 1982 in a case arising from a state court. But, first, I consider the threshold question of whether there is present in this case an adequate state ground which would bar review by this Court.

I

Adequacy of the State Ground

The Virginia Supreme Court of Appeals, both before and after this Court’s earlier remand, refused to consider the federal questions presented to it because it found that petitioners had failed to give opposing counsel “reasonable written notice of the time and place of tendering the transcript and a reasonable opportunity to examine the original or a true copy of it,” in violation of Rule 5:1, § 3 (f), of the local rules of court. The majority here suggests that the State’s procedural requirement, though not a “novel” one “fashioned ... for the first time in this case,” nevertheless had not been “so consistently applied ... as to amount to a self-denial of the power to entertain the federal claim.” The majority then goes on to conclude that because the State’s procedural rule is “more properly deemed discretionary than jurisdictional,” review should not be barred here. I agree with the majority’s conclusion that there is no adequate state ground shown, but I find myself unable to subscribe to the majority’s reasoning, which appears to me unclear and confusing.

I am not certain what the majority means in its apparent distinction between rules that it deems “discretionary” and those that it deems “jurisdictional.” Perhaps the majority wishes to suggest that the dismissals of petitioners’ writs of error by the Supreme Court of Appeals were simply ad hoc discretionary refusals to accept plenary review of the lower court’s decisions, analogous to this Court’s denial of certiorari. If this were all the Virginia Supreme Court of Appeals had done, review of a federal question properly raised below would of course not be barred here. The mere discretionary refusal of the highest state court to grant review of a lower court decision does not provide an adequate state ground. In such circumstances, the decision of the lower court, rather than the order of the highest court refusing review, becomes the judgment, of the “highest court of a State in which a decision could be had” for purposes of 28 U. S. C. § 1257, our jurisdictional statute.

But this case clearly does not present this kind of discretionary refusal of a state appellate court to accept review. Although the Virginia Supreme Court of Appeals may well have the “discretion” to refuse review in a particular case without giving reasons or reconciling its refusal with earlier decisions, the dismissal below was not simply an ad hoc exercise of the power not to review every case presented. Instead the state court dismissed the petitions for review for a stated reason, namely, a lack of “jurisdiction to entertain the appeals because of the failure of counsel for the Sullivans and the Freemans to meet the requirements of Rule 5:1, § 3 (f).” When a state appellate court’s refusal to consider the merits of a case is based on the failure to conform to a state rule of practice, review by this Court is barred unless this Court is able to find that application of the state rule of practice to the case at hand does not constitute an adequate state ground. This is so quite irrespective of whether the state appellate court had the power to refuse review for no reason at all.

The majority might have another meaning in mind when it describes the State’s procedural rule as “discretionary.” It may be suggesting that “reasonable written notice,” and “reasonable opportunity to examine” are such flexible standards that the Virginia Supreme Court of Appeals has the “discretion” to decide a close case either of two ways without creating an obvious conflict with earlier decisions. If this is what the majority means by “discretionary rule,” then I must register my disagreement. This kind of “discretion” is nothing more than “the judicial formulation of law,” for a court has an obligation to be reasonably consistent and “to explain the decision, including the reason for according different treatment to the instant case.” Surely a state ground is no less adequate simply because it involves a standard that requires a judgment of what is reasonable, and because the result may turn on a close analysis of the facts of a particular case in light of competing policy considerations.

Although the majority’s loose use of the word “discretionary” may suggest that any decision made pursuant to a broad standard cannot provide an adequate state ground, I think examination of the earlier opinions of the Virginia Supreme Court of Appeals, several of which are cited by the majority, provides the proper foundation for the result reached by the majority, under the principle of NAACP v. Alabama, 357 U. S. 449 (1958).

The finding of the Virginia Supreme Court of Appeals of a violation of Rule 5:1, § 3 (f), in this case was in my view based on a standard of reasonableness much stricter than that which could have been fairly extracted from the earlier Virginia cases applying the rule and its predecessor statute. In other words, although Rule 5:1, § 3 (f), itself may not be novel, the standard implicitly governing the rule’s application to the facts here was. I think it fair to conclude that in light of these earlier decisions, and the principle set forth in Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S. E. 2d 321, 326 (1958), the petitioners here might have justifiably

thought that review in the Supreme Court of Appeals would not be barred by the rule, notwithstanding Snead v. Commonwealth, 200 Va. 850, 108 S. E. 2d 399 (1959), the one case cited below by the Virginia court, relied on here by respondent and yet somehow ignored by the majority. Because “[njovelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal . . . rights,” NAACP v. Alabama, 357 U. S., at 457-458, I conclude that the decision below does not rest on an adequate state ground.

II

Because Congress has now provided a comprehensive scheme for dealing with the kinds of discrimination found in this case, I think it very unwise as a matter of policy for the Court to use § 1982 as a broad delegation of power to develop a common law of forbidden racial discriminations. A comparison of 42 U. S. C. § 1982 with the new Fair Housing Law, and consideration of the Court’s task in applying each, demonstrate to me the need for restraint, and the appropriateness of dismissing the writ in this case, now grounded solely on an alleged violation of § 1982.

Petitioners here complain of discrimination in the provision of recreation facilities ancillary to a rented house found in one of the four subdivisions served by Little Hunting Park. On the one hand, the Fair Housing Law has a provision that explicitly makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of . . . rental [of housing] , or in the provisions of services or facilities in connection therewith, because of race, [or] color . . . 42 U. S. C. § 3604 (b) (1964 ed., Supp. IV). (Emphasis added.) In contrast, as the majority in Jones noted, § 1982 “does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling,” 392 U. S., at 413.

By attempting to deal with the problem of discrimination in the provision of recreational facilities under § 1982, the Court is forced, in the context of a very vague statute, to decide what transactions involve “property” for purposes of § 1982. The majority states that “ [i] t is not material whether the membership share [in Little Hunting Park] be considered realty or personal property, as § 1982 covers both.” But examination of the opinion will show that the majority has failed to explain why the membership share is either real or personal property for purposes of § 1982. The majority’s complete failure to articulate any standards for deciding what is property within the meaning of § 1982 is a fair indication of the great difficulties courts will inevitably confront if § 1982 is used to remedy racial discrimination in housing. And lurking in the background are grave constitutional issues should § 1982 be extended too far into some types of private discrimination.

Not only does § 1982 fail to provide standards as to the types of transactions in which discrimination is unlawful, but it also contains no provisions for enforcement, either public or private. To give its construction of the statute effect, the Court has had to imply remedies that Congress has not explicitly provided — injunc-tive relief in Jones, and now a right to damages here. See Part III, infra.

These remedies are expressly provided for in the Fair Housing Law, which, with its variety of techniques for enforcing its prohibition of housing discrimination, again stands in sharp contrast with § 1982. First, an injured party can complain to the Secretary of Housing and Urban Development who is empowered to investigate complaints, and use “informal methods of conference, conciliation, and persuasion” to secure compliance with the law. Should the Secretary’s efforts prove unavailing, the complainant can go to court. As an alternative to going first to HUD, it appears that a person may go directly to court to enforce his rights under the Fair Housing Law, which expressly provides for a wide variety of relief, including restraining orders, injunctions, compensatory damages, and punitive damages up to 81,000. Furthermore, the Act allows a court to appoint counsel and waive all fees for indigent plaintiffs, and to award costs and, in certain cases, counsel fees to a successful plaintiff. In addition to actions initiated by private parties, the Attorney General is empowered to bring civil actions for preventive civil relief, and criminal actions to punish those who by force or threat of force willfully interfere with or intimidate those who wish to exercise, or aid others in the exercise, of their rights under the Fair Housing Law.

Given this comprehensive, contemporary statute, the limitations of which have not yet even been established, I believe that the Court should not decide this case but should instead dismiss the writ of certiorari as improvidently granted. This Court’s certiorari jurisdiction should not be exercised simply “for the benefit of the particular litigants,” Rice v. Sioux City Cemetery, 349 U. S. 70, 74 (1955), but instead for the “settlement of [issues] of importance to the public as distinguished from . . . the parties,” Layne & Bowler Cory. v. Western Well Works, Inc., 261 U. S. 387, 393 (1923). Even from the perspective of the parties, this case has lost much of its practical importance due to the fact that Dr. Freeman’s work has taken him and his family away from the area served by Little Hunting Park, thereby making moot his original claim for injunctive relief. But more fundamentally, I think here, as I did in Jones, that the existence of the Fair Housing Law.renders the decision of this case of little “importance to the public.” For, although the 1968 Act does not cover this particular case, should a Negro in the future rent a house but be denied access to ancillary recreational facilities on account of race, he could in all likelihood secure relief under the provisions of the Fair Housing Law.

Ill

The undiscriminating manner in which the Court has dealt with this case is both highlighted and compounded by the Court’s failure to face, let alone resolve, two issues that lie buried beneath the surface of its opinion. Both issues are difficult ones, and the fact that the majority has not come to grips with them serves to illustrate the inevitable difficulties the Court will encounter if it continues to employ § 1982 as a means for dealing with the many subtle human problems that are bound to arise as the goal of eliminating discriminatory practices in our national life is pursued.

A. Relief foe Sullivan

Because the majority opinion is highly elliptical as to (1) the circumstances surrounding Sullivan’s expulsion from Little Hunting Park, (2) the relief Sullivan sought in the state court, and (3) the decision of the trial court, it is necessary for me to begin my analysis simply by stating the facts of these aspects of the case. A full examination of the record reveals, first, the necessity for a remand on the majority’s own premises. It also makes apparent the majority’s failure to provide any guidance as to the legal standards that should govern Sullivan’s right to recovery on remand. An awareness of the complexity of the issues relevant to Sullivan’s right to redress suggests further, I think, the appropriateness of a discretionary denial of review.

1. The Circumstances of Sullivan’s Expulsion. After the Board of Little Hunting Park refused to approve the assignment of a membership share from Sullivan to Freeman, Sullivan attempted to convince the Board to reverse its decision. To this end, Sullivan first met with members of the Board, and protested their actions. He subsequently mobilized a campaign both by other members of the club and by persons in the community as a whole to force the Board to reconsider its decision. The means used in this campaign, as the brief for petitioner Sullivan acknowledges, included phone calls to members of the Board, letters to local clergy, and the circulation among the members of Little Hunting Park of a petition that called for a meeting of the full membership to consider Dr. Freeman’s case.

On July 8 Sullivan received a letter from the Board which stated that it had determined that there was “due cause” to warrant a hearing in order to determine whether Sullivan should be expelled from Little Hunting Park, pursuant to its bylaws, for “conduct inimicable to the Corporation members.” This letter referred to Sullivan’s “non-acceptance of the Board’s decision on the assignment of your membership to your tenant . . . along with the continued harassment of the board members” as the basis for the Board’s “due cause” determination.

The Board subsequently provided a detailed specification of its charges against Sullivan, and these included, inter alia, allegations that Sullivan had (a) instigated a campaign by which board members were harassed by “unfriendly phone calls” accusing them of bigotry; (b) used “abusive” language in a phone call to the president of the Board; (c) written letters to local clergy, including the minister of the church which employed the president of Little Hunting Park, accusing board members of participation in “real moral evil”; and (d) used “violent and abusive language” to members of Little Hunting Park who had refused to sign his petition. After the hearing on these charges, the Board expelled Sullivan and tendered to him the current market value of the two membership shares that he held.

In response to these actions, Sullivan brought this suit in the Circuit Court of Fairfax County, Virginia, against Little Hunting Park and its Board seeking as relief (1) an order compelling Little Hunting Park to reinstate his membership; (2) monetary damages in the amount of $15,000; and (3) an injunction requiring the Board to approve the assignment to Freeman and forbidding the Board to use race as a factor in considering membership. The trial court, after hearing disputed evidence as to the reasons for Sullivan’s expulsion, found for the defendants. It stated that the scope of its review of the Board’s actions was “limited” because Little Hunting Park was a “private and social” club, and then went on to find that the Board had acted within “the powers conferred on it by the By-Laws” in •expelling Sullivan, and that “there was ample evidence to justify [the Board’s] conclusion that the complainant’s acts were inimicable to the Corporation’s members and to the Corporation.”

2. With this statement of the record in mind, several observations must be made about the majority’s treatment of Sullivan’s rights. First, in stating that “Sullivan’s expulsion [was] for the advocacy of Freeman’s cause,” the majority surely cannot be taken to have resolved disputed testimony, and decided the facts underlying Sullivan’s expulsion. If these facts are relevant to Sullivan’s remedial rights, as surely they must be, then a remand for detailed findings seems unavoidable under the majority’s own premises.

Second, the majority has not explained what legal standard should determine Sullivan’s rights under § 1982. The majority simply states that “Sullivan has standing to maintain this action” under § 1982, without even acknowledging that some standard is essential for this case to be ultimately decided.

One can imagine a variety of standards, each based on different legal conclusions as to the “rights” and “duties” created by § 1982, and each having very different remedial consequences. For example, does § 1982 give Sullivan a right to relief only for injuries resulting from Little Hunting Park’s interference with his statutory duty to Freeman under § 1982? If so, what is Sullivan’s duty to Freeman under § 1982? Unless § 1982 is read to impose a duty on Sullivan to protest Freeman’s exclusion, he would be entitled to reinstatement under this standard only if the Board had expelled him for the simple act of assigning his share to Freeman.

As an alternative, Sullivan might be thought to be entitled to relief from those injuries that flowed from the Board’s violation of its “duty” to Freeman under § 1982. Such a standard might suggest that Sullivan is entitled to damages that resulted from Little Hunting Park’s initial refusal to accept the assignment to Freeman but again not to reinstatement. Or does the Court think that § 1982 gives Sullivan a right to relief from injuries that result from his “legitimate” protest aimed at convincing the Board to accept Freeman? If so, what protest activities were legitimate here? Most extreme would be a standard that would give Sullivan relief from injuries that were the result of any actions he took to protest the Board’s initial refusal, irrespective of Sullivan’s means of protest. Only this standard would require reinstatement, irrespective of the disputed facts here. But this standard would mean that § 1982 gave Sullivan a right to regain his membership even if the Board has expelled him for using intemperate and abusive threats as a means of protesting Freeman’s exclusion.

B. State Court Remedies for Federal Rights

Because this case arises from a state court, it presents special problems which the majority overlooks, and which suggests again the undesirability of deciding this case in the context of this ancient statute. In deciding that there is a right to recover damages in this case, the majority overlooks the complications involved by dint of the fact that a state court is being asked to provide a remedy for a federal right bottomed on a federal statute that itself has no remedial provisions.

Implied remedies for federal rights are sometimes solely a matter of federal law and other times dependent, either wholly or partially, upon state law. Difficult and complex questions are involved in determining what remedies a state court must or must not provide in cases involving federal rights.

It should be noted that the majority’s opinion, though perhaps deciding very little only adds to the confusion already existing in this area. Section 1988 of Title 42, which the majority apparently thinks decides this case, is concerned with the remedial powers of federal district courts and it provides that the federal courts shall look to state law to find appropriate remedies when the applicable federal civil rights law is “deficient in the provisions necessary to furnish suitable remedies . . . .” But the majority turns this provision on its head by suggesting (1) that § 1988 creates a federal remedy, apart from state law, when the remedial provisions of a civil rights statute, like § 1982, are “deficient”; and (2) that § 1988 itself somehow imposes this federal remedy on the States. If § 1988 says anything at all relevant for this case, it suggests that in those cases where it is appropriate to cure remedial deficiencies of a federal civil rights statute by implication, this is to be done by looking to state law to see what remedies, consistent with federal policies, would be available there.

By reason of these considerations, many of which could hardly have been foreseen at the time certiorari was granted, I would dismiss the writ in this case as improvidently granted.

       Rule 5:1 which is entitled “The Record on Appeal” states the following in § 3 (f):
      “Such a transcript or statement not signed by counsel for all parties becomes part of the record when delivered to the clerk, if it is tendered to the judge within 60 days and signed at the end by him within 70 days after final judgment. It shall be forthwith delivered to the clerk who shall certify on it the date he receives it. Counsel tendering the transcript or statement shall give opposing counsel reasonable written notice of the time and place of tendering it and a reasonable opportunity to examine the original or a true copy of it. The signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript or statement is authentic. He shall note on it the date it was tendered to him and the date it was signed by him.”

       In Bolin v. Laderberg, 207 Va. 795, 153 S. E. 2d 251, appellants’ counsel had delivered the transcript to appellees’ counsel on November 24, 1965. The transcript was tendered to the trial judge on November 26, and was signed by him on December 3. Appellees moved to dismiss the appeal on the ground that they had not been given “reasonable notice and opportunity” under Rule 5:1. The court stated that the motion should be overruled on the ground that Rule 5:1 provides that “[t]he signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript ... is authentic.” The court noted that the judge’s “signature appears on the transcript without more and is, therefore, his certification that counsel for [appellees] had the required notice of tendering the transcript and the required opportunity to examine it.” Id., at 797, 153 S. E. 2d, at 253.
      In Cook v. Virginia Holsum Bakeries, 207 Va. 815, 153 S. E. 2d 209, notice that the transcript would be tendered to the trial judge on October 20, 1965, was given to counsel for the appellee on October 15. Appellant’s counsel, however, did not obtain a copy of the transcript until October 19. At a conference held on that same date, counsel for both parties went over the transcript and agreed on certain corrections and additions. At the hearing on October 20, appellee’s counsel claimed he had not been given the reasonable notice and opportunity required by Rule 5:1. He then suggested numerous changes, and the trial judge ordered the transcript altered to reflect those changes. The revised transcript was tendered to the trial judge the next day, October 21, and signed by him that same day. On appeal, appellee moved to dismiss on the ground that the Rule 5:1 requirements had not been satisfied. The Virginia Supreme Court of Appeals overruled the motion, stating: “The narrative was amended to meet the suggested changes of counsel for [appellee], and he conceded in oral argument before us that the statement signed by the trial judge was correct.” Id., at 817, 153 S. E. 2d, at 210.

       42 U. S. C. § 1982 provides:
      “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

       Section 207 (b) of the Act of July 2, 1964, 78 Stat. 246, provides:
      “The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title, but nothing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.”

       The Act is not fully effective until December 31, 1969. 42 O'. S. C. § 3603 (b) (1964 ed., Supp. IV). Even at that time it will not apply to a “single-family house” if the house is sold without the services of a real estate broker and without the notice described in § 3604 (c) (1964 ed., Supp. IV). See § 3603 (b) (1964 ed., Supp. IV). So no one knows whether the new Act would apply to these ancient transactions, even if they arose after December 31, 1969.

       392 U. S., at 452-454 (dissenting opinion).

       392 U. S., at 454473 (dissenting opinion). See Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89, 99-122; The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 93-103 (1968).

       Civil Rights Act of 1968, Tit. VIII, 42 U. S. C. § 3601 et seq. (1964 ed., Supp. IV).

       The third and final stage in the expansion of the coverage of the Fair Housing Law takes effect after December 31, 1969. See 42 U. S. C. §3603 (b) (1964 ed., Supp. IV).

       See n. 1 of the majority opinion, ante, at 231, for the text of the rule.

       See, e. g., Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157, 159-160 (1954).

         It appears that plenary review by the Virginia Supreme Court of Appeals is not a matter of right for many kinds of cases. See Va. Code Ann. §8-462 (1957 Repl. Vol.); Va. Const. §§87, 88.

       See Hammerstein v. Superior Court, 341 U. S. 491, 492 (1951); Chesapeake & Ohio R. Co. v. McDonald, 214 U. S. 191 (1909); Newman v. Gates, 204 U. S. 89 (1907).

       Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup. Ct. Rev. 187, 226. See id., at 225-226 for a discussion of Mr. Justice Black’s dissent in Henry v. Mississippi, 379 U. S. 443, 455-457 (1965), which is cited by the majority. Williams v. Georgia, 349 U. S. 375 (1955), which is not cited by the majority, does not in my view support the reasoning of the majority. I think the result-in Williams rests upon a determination of inconsistency in the application of the State’s procedural requirements for a new trial. See 349 U. S., at 383.

        Bolin v. Laderberg, 207 Va. 795, 153 S. E. 2d 251 (1967); Cook v. Virginia Holsum Bakeries, 207 Va. 815, 153 S. E. 2d 209 (1967); Taylor v. Wood, 201 Va. 615, 112 S. E. 2d 907 (1960); Bacigalupo v. Fleming, 199 Va. 827, 102 S. E. 2d 321 (1958).

        Stokely v. Owens, 189 Va. 248, 52 S. E. 2d 164 (1949); Grimes v. Crouch, 175 Va. 126, 7 S. E. 2d 115 (1940).

       It can be seen from the passage quoted by the majority, see ante, at 232-233, that Badgalupo interpreted the rule as requiring that (1) opposing counsel must have a reasonable opportunity to examine the transcript after he receives notice; and (2) based on this examination, opposing counsel must have a reasonable opportunity to make any objections he has to the accuracy of the transcript before the transcript is signed by the trial judge. In this case, opposing counsel received notice by telephone on Friday, June 9, and by letter the following Monday. His opportunity to examine the transcript consisted of the time between Monday and Friday when the transcript was available to him in the judge’s chambers; and the time between Friday, June 16, and Monday, the 19th, when he actually had in his possession a copy of the transcript. Any argument that this length of time, per se, is not reasonable opportunity is belied by Cook v. Virginia Holsum Bakeries, supra, where opposing counsel received a copy of a narrative only two days before the trial judge signed it, and the Virginia Supreme Court of Appeals found no violation of the rule.

       In Snead, the Virginia Supreme Court of Appeals said:
      “It is important that time be given opposing counsel for a reasonable opportunity to analyze such statements characterized by defendant’s counsel as being confusing. The entire testimony of a very material witness was left out of the narrative statement when it was presented to the trial judge and it was necessary for him to insert it. We are of the opinion that the notice delivered to the Commonwealth’s Attorney at his residence, after office hours, thirty minutes before tendering a narrative statement of the evidence to the trial judge for his signature, does not constitute reasonable notice within the plain meaning of Rule 5:1, § 3 (f) and that the terms of the Rule are mandatory and jurisdictional.” 200 Va., at 854, 108 S. E. 2d, at 402.
      This case is far different from Snead in significant respects. First, in Snead the court was not confronted with a transcript but instead with a narrative; and this narrative was, by the admission of appellant’s own counsel, “of a confusing nature and character.” In this case, on the other hand, the record fails to show that counsel for respondent made any objection to the trial judge as to the adequacy of the notice, or to the accuracy of the transcript, see Taylor v. Wood, supra; Stokely v. Owens, supra. Furthermore, at oral argument before this Court, counsel for respondent could not point to a single inaccuracy in the transcript as signed by the trial judge. Tr. of Oral Arg. 20. Second, in Snead opposing counsel was only given one-half hour’s notice of a proposed tender to the judge for signature that night. In this ease, although the transcript was sent to the judge at about the same time as opposing counsel received notice, that notice stated that the judge would not be asked to sign the transcript for a week, so counsel could first have an opportunity to examine it.
      Respondent suggests that the rule requires that opposing counsel have notice and an opportunity to examine the transcript before the transcript is given to the judge rather than simply before the judge signs it. No prior Virginia case of which we have been made aware has so stated, however, and the principle of Bacigalupo quoted by the majority suggests that the key is that there be an opportunity to inspect and to make objections before the judge signs the transcript.

       See Civil Rights Cases, 109 TJ. S. 3 (1883).

       42 U. S. C. §3610 (a) (1964 ed., Supp. IV).

        Id., §3610 (d).

         Id., § 3612. See Fair Housing Law and Other Federal Civil Rights Laws and Executive Orders Relating to the Programs of the U. S. Department of Housing and Urban Development, Dept, of Housing and Urban Development, Office of Equal Opportunity; Note, Discrimination in Employment and in Housing: Private Enforcement Provisions of the Civil Rights Acts of 1964 and 1968, 82 Harv. L. Rev. 834, 839, 855-859, 862-863 (1969).

       42 U. S. C. § 3612 (c) (1964 ed., Supp. IV).

        Id., §§3612 (b), 3612 (c).

         Id., §§ 3613, 3631. See id., § 3617.

       Cf. Bickel, Foreword: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv. L. Rev. 40 (1961).

       Given that the market price of a membership share in Little Hunting Park apparently ranged from $150 to $230 during the time in question, see Government’s Amicus Brief 5, Freeman’s compensatory damages will not, in all probability, be substantial. And, as I point out in the next section, unresolved factual issues may bar any relief at all for Sullivan.

       The relevant events in this case all took place in 1965, long before the Fair Housing Law first went into effect on April 11, 1968. Whether the Fair Housing Law would protect Dr. Freeman were like events to take place again after December 31, 1969, in part would depend upon whether the transaction between Sullivan and Freeman would fall within any of the categories described in n. 24, infra. On the facts as they appear in this record, the exemption found in 42 U. S. C. § 3607 (1964 ed., Supp. IV) would not appear to bar recovery.

       In addition to covering all single-family houses not owned by private individuals, and single-family houses owned by a private individual who owns more than three houses, the Fair Housing Law, after December 31, 1969, covers the rental of all single-family homes (a) rented with the help of a real estate broker; or (b) offered for rental through a written notice or advertisement which is discriminatory. See 42 U. S. C. §3603 (b) (1964 ed., Supp. IV).

       See Petitioners’ Brief 9-11, 39-50.

       See Appendix 181-182, 185-186. The detailed specification of charges against Sullivan was given by Little Hunting Park as part of a settlement of a suit brought by Sullivan to enjoin the hearing on his expulsion. This earlier suit, which was dismissed by agreement between the parties, was brought by Sullivan, because of the vagueness of the July 8 letter as to the conduct upon which the due-cause hearing was to be held. The settlement of this earlier suit also included a stipulation between Sullivan and Little Hunting Park as to future lawsuits, which respondents claimed below barred Sullivan’s suit before us now. This aspect of the stipulation was noted, but not passed on, by the trial judge below.

         Barrows v. Jackson, 346 U. S. 249 (1963), upon which the majority appears to place heavy reliance, gives no guidance as to the extent a state court is obliged to allow a white person to recover affirmatively either damages or other relief after he has transferred a real estate interest to a Negro. In Barrows the Court held that damages could not be awarded against a white defendant sued for breach of a racially restrictive covenant.

       See J. I. Case Co. v. Borak, 377 U. S. 426 (1964).

       See Ward v. Love County, 253 U. S. 17 (1920); The Tungus v. Skovgaard, 358 U. S. 588 (1959).

        Testa v. Katt, 330 U. S. 386 (1947) (state court obligated to give treble damages, required by federal statute, for violation of Emergency Price Control Act).

       See Avco Corp. v. Aero Lodge No. 735, 390 U. S. 557, 560 n. 2 (1968) (Court did not decide whether the remedies available in a state court in a suit to enjoin a strike are limited to the remedies available under federal law).

       See H. Hart & H. Wechsler, The Federal Courts and The Federal System 474-477 (1953); Greene, Hybrid State Law in the Federal Courts, 83 Harv. L. Rev. 289, 315-319 (1969).

       The majority, in its penultimate paragraph, appears not to decide whether the “rule of damages” is “drawn from federal or state sources.”


author: Mr. Justice Marshall Mr. Justice Douglas,

text:
    NATIONAL LABOR RELATIONS BOARD v. J. H. RUTTER-REX MANUFACTURING CO., INC., et al.
    No. 32.
    Argued October 22, 1969
    Decided December 15, 1969

      Arnold Ordman argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Dominick L. Manoli, Norton J. Gome, and Allison W. Brown, Jr.

      Henry J. Read argued the cause for respondent J. H. Rutter-Rex Manufacturing Co., Inc. With him on the briefs were Peter H. Beer and Daniel Lund. Jacob Sheinkman, Ralph N. Jackson, and James J. Graham filed a brief for respondent Amalgamated Clothing Workers’ of America, AFL-CIO.
   Mr. Justice Marshall

delivered the opinion of the Court.

This case presents the question whether, when an employer has improperly failed to reinstate striking employees, and the National Labor Relations Board has after considerable delay ordered back pay for those employees, a court of appeals may, on account of the delay, modify the Board’s order to provide an early cutoff date for back pay. In the circumstances of this case, we hold such a modification to be an unwarranted interference with the Board’s remedial power to implement the policies of the National Labor Relations Act.

I

The employees in question chose the Amalgamated Clothing Workers of America, AFL-CIO, as their bargaining representative in January 1954. After three bargaining' sessions between the union and the company, the employees went out on strike in April 1954. At that point and thereafter the company refused to bargain further with the union representatives. Charges of unfair labor practices, including a refusal to bargain in good faith, were filed against the company. In April 1955, while these charges were pending, the union terminated the strike and applied for the reinstatement of many of the strikers. The company reinstated some of these employees and failed to reinstate others.

In February 1956 the Board found that the company had indeed been guilty of an unlawful refusal to bargain. It ordered the company to offer reinstatement to all strikers who applied, and to “make such applicants whole for any loss of pay suffered by reason of the ... refusal, if any, to reinstate them.” J. H. Rutter-Rex Mfg. Co., 115 N. L. R. B. 388, 391 (1956). As is apparently the Board’s practice in reinstatement cases involving strikers, the order did not name the individuals covered, but left disputes over the details of reinstatement and back pay to the compliance stage of the proceedings. The Court of Appeals enforced the Board’s order, NLRB v. J. H. Rutter-Rex Mfg. Co., 245 F. 2d 594 (C. A. 5th Cir. 1957), and entered its decree on August 19, 1957.

On August 21, 1957, the Board’s regional office sent the company the standard letter describing compliance procedures, which included the following:

“When you have fully complied with the affirmative terms of the Decree and there are no violations of its negative provisions, you will be notified that the case has been closed. Until you receive such notice you will know that the case still remains open for all purposes as awaiting compliance.”

On November 7, 1957, the company wrote to the regional office stating that it had complied with “some of the provisions of the decree,” and asking that the regional office bring “any instance of a failure to fully comply with the order” to the company’s attention. The regional office did not answer this letter, and the company heard nothing until March 22, 1960, when a Board compliance officer notified the company that the case had been assigned to him, and requested payroll and other records necessary to determine the employment and back-pay rights of employees.

On November 16, 1961, the regional office filed a 428-page back-pay specification, alleging that the company owed more than $342,000 to some 207 strikers who had either not been reinstated within five days after applying, or who had never been reinstated, in violation of the Board and court orders. The company applied to the Court of Appeals for a permanent stay of further action in the back-pay proceedings, alleging that the Board had delayed improperly in issuing the specification. By affidavit, the Board explained that the delay was caused in part by the great complexity of the task of processing the claims of approximately 600 strikers, and in part by the extremely heavy caseload and severe limitations in staff that the New Orleans regional office experienced during the late 1950’s. The Court of Appeals noted that the delay was regrettable, but denied the requested stay. NLRB v. J. H. Rutter-Rex Mfg. Co., 305 F. 2d 242 (C. A. 5th Cir. 1962).

After a lengthy hearing, a Trial Examiner denied back pay to 35 of the 207 claimants, and reduced the amount due to just over $160,000. He determined that each employee should receive net back pay, computed according to the Board’s usual formula, for the period running from five days after his application for reinstatement until the company made a complying offer. Where no offer was made, the back pay was to accrue through the last quarter of 1961, the quarter in which the specification was filed. His findings and recommendations were adopted with minor modifications by the Board on June 6, 1966. J. H. Rutter-Rex Mfg. Co., 168 N. L. R. B. 1414 (1966). Both the Examiner and the Board considered and rejected the company’s contention that the delay in issuing the specification should bar the back-pay award, either in whole or in part.

On review, the Court of Appeals found that the Board had been guilty of “inordinate” delay, in violation of § 6 (a) of the Administrative Procedure Act, 60 Stat. 240, 5 U. S. C. § 1005 (a), now 5 U. S. C. § 555 (b) (1964 ed., Supp. IV), and to the prejudice of the company, which had been “lulled into the belief that the Board was satisfied and that no further action was to be expected.” J. H. Rutter-Rex Mfg. Co. v. NLRB, 399 F. 2d 356, 363 (C. A. 5th Cir. 1968). Arguing that the purpose of back-pay awards is to “deter unfair labor practices,” id., at 364, and believing that a substantial award of back pay would be sufficient to achieve such deterrent effect, the court modified the Board order to eliminate all back pay accruing after July 1, 1959, thus reducing the awards of some 37 strikers who had not yet received complying offers of reinstatement by that date. We granted certiorari to consider the propriety of this modification, 393 U. S. 1116 (1969), and we reverse the judgment below.

II

We start with the broad command of § 10 (c) of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U. S. C. § 160 (c), that upon finding that an unfair labor practice has been committed, the Board shall order the violator “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies” of the Act. This Court has stated that the remedial power of the Board is “a broad discretionary one, subject to limited judicial review.” Fibreboard Corp. v. NLRB, 379 U. S. 203, 216 (1964).

The legitimacy of back pay as a remedy for unlawful discharge or unlawful failure to reinstate is beyond dispute, Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 278 (1956), and the purpose of the remedy is clear. “A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice.” Nathanson v. NLRB, 344 U. S. 25, 27 (1952). As with the Board’s other remedies, the power to order back pay “is for the Board to wield, not for the courts.” NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 346 (1953). “When the Board, ‘in the exercise of its informed discretion,’ makes an order of restoration by way of back pay, the order ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” Id., at 346-347.

Here the Board ordered back pay through December 1961 for employees who had not yet received complying offers of reinstatement by that date. That order clearly falls within the general purpose of making the employees whole, and thus restoring the economic status quo that would have obtained but for the company’s wrongful refusal to reinstate them. The employees encompassed by the order earned less during the relevant quarterly periods than they would have, had they been reinstated in their old or substantially equivalent jobs with the company. Thus the Court of Appeals’ modification, cutting off the accrual of back pay at the arbitrary date of July 1, 1959, left the employees who had not been reinstated by that date worse off than they would have been but for the company’s wrongful action in refusing reinstatement. Either the company or the employees had to bear the cost of the Board’s delay. The Board placed that cost upon the company, which had wrongfully failed to reinstate the employees. In an effort to discipline the Board for its delay, the court shifted part of that cost from the wrongdoing company to the innocent employees.

The Court of Appeals justified the modification as a proper balancing of the interests of the company, which it found was prejudiced in litigating the back-pay claims by the Board’s delay, and the interests of the employees in full restitution. It found statutory support for the company’s position in what it took to be the Board’s violation of its duty under the Administrative Procedure Act to “proceed with reasonable dispatch to conclude any matter presented to it.” 5 U. S. C. § 1005 (a). Thus, the Court of Appeals reasoned, the case fell within the admonition that reviewing courts in labor cases not “rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U. S. 278, 291 (1965).

Assuming without deciding that the delay in issuing the specification did violate the Board’s duty of prompt action under the Administrative Procedure Act, it does not follow that enforcement of the full back-pay remedy was an abuse of the Board’s discretion. Wronged employees are at least as much injured by the Board’s delay in collecting their back pay as is the wrongdoing employer. In view of “the economic hardship caused by many years of undeservedly substandard earnings,” lengthy delays “must render the back pay award a wholly inadequate and unsatisfactory remedy” to the employees for the company’s refusal to reinstate them. NLRB v. Mastro Plastics Corp., 354 E. 2d 170, 180 (C. A. 2d Cir. 1965). This Court has held before that the Board is not required to place the consequences of its own delay, even if inordinate, upon wronged employees to the benefit of wrongdoing employers. NLRB v. Electric Cleaner Co., 315 U. S. 685, 698 (1942); Labor Board v. Katz, 369 U. S. 736, 748 n. 16 (1962).

The Court of Appeals reasoned further that the purpose of the back-pay remedy is deterrence of unfair labor practices, and that the substantial back-pay award that it enforced would sufficiently serve that deterrent purpose. But the Board could properly conclude that back pay is not only punishment for an unfair labor practice, but is also a remedy designed to restore, so far as possible, the status quo that would have obtained but for the wrongful act. Cf. Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194 (1941).

Finally, the Court of Appeals reasoned that the company was “lulled into the belief that the Board was satisfied and that no further action was to be expected.” 399 F. 2d, at 363. We need not decide whether this sort of estoppel argument would justify a court in reducing a back-pay award, for no estoppel appears in this case. The Board clearly informed the company that this case would remain open as awaiting compliance until the company received a notice that the case was closed. No such closing notice was ever given. As the Court of Appeals itself stated, the company’s subsequent letter asking that violations of the order be called to its attention “could not shift or avoid its duty of compliance.” Ibid.

We do not mean that delay in the administrative process is other than deplorable. It is deplorable if, as the Court of Appeals thought, the company was hampered in the presentation of its defenses to the back-pay specification by the delay. It is even more deplorable if, as seems clear, innocent employees had to live for some years on reduced incomes as a combined result of the delay and the company’s illegal failure to reinstate them. It may be that the company could have, through the courts, compelled earlier Board action. But the Court of Appeals exceeded the narrow scope of review provided for the Board’s remedial orders when it shifted the cost of the delay from the company to the employees in this case.

Reversed.

Mr. Justice Douglas,

with whom The Chief Justice and Mr. Justice Harlan concur,

dissenting.

Universal Camera Corp. v. NLRB, 340 U. S. 474, requires a dismissal of the writ of certiorari.

To start with, the Board is allowed a wide field of discretion over awards of back pay against a company found to have committed an unfair labor practice. As the Court said in Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 198:

“The remedy of back pay, it must be remembered, is entrusted to the Board’s discretion; it is not mechanically compelled by the Act. And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations.”

Thus the employees in this case have no automatic “right” to any award of back pay.

The Universal Camera case concerned the scope of judicial review of orders of the Board. Prior to that decision, many courts had conceived their function of review as an extremely narrow one; some courts looked only for evidence which, when viewed in isolation, substantiated the Board’s findings. Congress registered its dissatisfaction with this restricted scope of review by stating the proper test in the Taft-Hartley Act as one of “substantial evidence on the record considered as a whole.” 61 Stat. 148, 29 U. S. C. § 160 (e). This meant that the courts of appeals were to “assume more responsibility for the reasonableness and fairness of Labor Board decisions” than had been the practice of many of these courts in the past. 340 U. S., at 490.

The impact of this decision was to vest the courts of appeals with general supervisory responsibility over Board decisions and orders. Accordingly, the role of this Court was to be an extremely limited one. The Court in Universal Camera put it this way:

“Our power to review the correctness of application of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.” Id., at 490-491.

The problem in the present case is one of working out the equities of a back-pay order. Because the Board’s delay in initiating compliance proceedings with respect to its original order was deemed unreasonable, the Court of Appeals saw fit to modify the terms of that order. The impact of the specific facts relating to the Board’s and the company’s actions in this case was taken into account by the Court of Appeals in reviewing the terms of the back-pay order. It arrived at its judgment as an exercise of its responsibility “for assuring that the Board keeps within reasonable bounds” (id., at 490) in a subject area that necessarily involves “diverse, complicated situations.”

Casting the issue as one of “law” rather than as one of “fact” does not conceal the substantial departure in this case from the learning of Universal Camera: that the courts of appeals, and not this Court, are the watchdogs of the Board.

I would dismiss the writ as improvidently granted.

         NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 345 (1953).

       The Court of Appeals also reversed back-pay awards as to 10 strikers in their entirety, finding the awards not supported by substantial evidence. 399 F. 2d, at 365. Certiorari was not sought as to this modification of the Board’s order.

       Section 10 (e) (A) of the Administrative Procedure Act, 5 U. S. C. § 1009 (e) (A), now 5 II. S. C. § 706 (1) (1964 ed., Supp. IV), provides that courts shall “compel agency action unlawfully withheld or unreasonably delayed.”