author: Justice Kennedy

text:
    McKENNON v. NASHVILLE BANNER PUBLISHING CO.
    No. 93-1543.
    Argued November 2, 1994
    Decided January 23, 1995

      Kennedy, J., delivered the opinion for a unanimous Court.

      Michael E. Terry argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. Shaw, Charles Stephen Ralston, and Eric Schnapper.

      Irving L. Gornstein argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Kent L. Jones, Dennis J. Dimsey, Mark L. Gross, James R. Neely, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler.

      R. Eddie Way land argued the cause for respondent. With him on the brief was Elizabeth B. Mamey.

      Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon and Laurence Gold; for the Lawyers’ Committee for Civil Rights Under Law et al. by William F. Sheehan, Steven R. Shapiro, Helen Hersh-koff, Michael A Cooper, Norman Redlich, Thomas J. Henderson, Richard T. Seymour, Sharon R. Vinick, and Cathy Ventrell-Monsees; and for the Women’s Legal Defense Fund et al. by Judith L. Lichtman and Donna R. Lenhoff.

      Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Zachary D. Fasman, Charles A Sha-nor, Kelly J. Koelker, Stephen A Bokat, and Robin S. Conrad; and for the Equal Employment Advisory Council et al. by Douglas S. McDowell, Ann Elizabeth Reesman, Lee T. Paterson, Dwight H. Vincent, John F. Sturm, René P. Milam, and Peter G. Stone.

        Jeffrey Robert White, Nancy Erika Smith, and Neil Mullin filed a brief for the National Employment Lawyers Association et al. as amici curiae.

   Justice Kennedy

delivered the opinion of the Court.

The question before us is whether an employee discharged in violation of the Age Discrimination in Employment Act of 1967 is barred from all relief when, after her discharge, the employer discovers evidencé of wrongdoing that, in any event, would have led to the employee’s termination on lawful and legitimate grounds.

I

For some 30 years, petitioner Christine McKennon worked for respondent Nashville Banner Publishing Company. She was discharged, the Banner claimed, as part of a work force reduction plan necessitated by cost considerations. McKen-non, who was 62 years old when she lost her job, thought another reason explained her dismissal: her age. She filed suit in the United States District Court for the Middle District of Tennessee, alleging that her discharge violated the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. (1988 ed. and Supp. V). The ADEA makes it unlawful for any employer:

“to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. § 623(a)(1).

McKennon sought a variety of legal and equitable remedies available under the ADEA, including backpay. App. 10a-lla.

In preparation of the case, the Banner took McKennon’s deposition. She testified that, during her final year of employment, she had copied several confidential documents bearing upon the company’s financial condition. She had access to these records as secretary to the Banner’s comptroller. McKennon took the copies home and showed them to her husband. Her motivation, she averred, was an apprehension she was about to be fired because of her age. When she became concerned about her job, she removed and copied the documents for “insurance” and “protection.” Deposition, Dec. 18, 1991, Record, Docket Entry No. 39, Vol. 2, p. 241. A few days after these deposition disclosures, the Banner sent McKennon a letter declaring that removal and copying of the records was in violation of her job responsibilities and advising her (again) that she was terminated. The Banner’s letter also recited that had it known of McKennon’s misconduct it would have discharged her at once for that reason.

For purposes of summary judgment, the Banner conceded its discrimination against McKennon. The District Court granted summary judgment for the Banner, holding that McKennon’s misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. 797 F. Supp. 604 (MD Tenn. 1992). The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale. 9 F. 3d 539 (1993). We granted certiorari, 511 U. S. 1106 (1994), to resolve conflicting views among the Courts of Appeals on the question whether all relief must be denied when an employee has been discharged in violation of the ADEA and the employer later discovers some wrongful conduct that would have led to discharge if it had been discovered earlier. Compare Welch v. Liberty Machine Works, Inc., 23 F. 3d 1403 (CA8 1994); O’Driscoll v. Hercules Inc., 12 F. 3d 176 (CA10 1994); 9 F. 3d 539 (CA6 1993) (case below); Washington v. Lake County, 969 F. 2d 250 (CA7 1992); Johnson v. Honeywell Information Systems, Inc., 955 F. 2d 409 (CA6 1992); Summers v. State Farm Mutual Automobile Ins. Co., 864 F. 2d 700 (CA10 1988); Smallwood v. United Air Lines, Inc., 728 F. 2d 614 (CA4), cert. denied, 469 U. S. 832 (1984), with Mardell v. Harleysville Life Ins. Co., 31 F. 3d 1221 (CA3 1994); Kristufek v. Hussman Foodservice Co., Toastmaster Div., 985 F. 2d 364 (CA7 1993); Wallace v. Dunn Construction Co., 968 F. 2d 1174 (CA11 1992), vacated pending rehearing en banc, 32 F. 3d 1489 (1994). We now reverse.

II

We shall assume, as summary judgment procedures require us to assume, that the sole reason for McKennon’s initial discharge was her age, a discharge violative of the ADEA. Our further premise is that the misconduct revealed by the deposition was so grave that McKennon’s immediate discharge would have followed its disclosure in any event. The District Court and the Court of Appeals found no basis for contesting that proposition, and for purposes of our review we need not question it here. We do question the legal conclusion reached by those courts that after-acquired evidence of wrongdoing which would have resulted in discharge bars employees from any relief under the ADEA. That ruling is incorrect.

The Court of Appeals considered McKennon’s misconduct, in effect, to be supervening grounds for termination. That may be so, but it does not follow, as the Court of Appeals said in citing one of its own earlier cases, that the misconduct renders it “ ‘irrelevant whether or not [McKennon] was discriminated against.’” 9 F. 3d, at 542, quoting Milligan-Jensen v. Michigan Technological Univ., 975 F. 2d 302, 305 (CA6 1992), cert. granted, 509 U. S. 943, cert. dism’d, 509 U. S. 903 (1993). We conclude that a violation of the ADEA cannot be so altogether disregarded.

The ADEA, enacted in 1967 as part of an ongoing congressional effort to eradicate discrimination in the workplace, reflects a societal condemnation of invidious bias in employment decisions. The ADEA is but part of a wider statutory scheme to protect employees in the workplace nationwide. See Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq. (1988 ed. and Supp. V) (race, color, sex, national origin, and religion); the Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq. (1988 ed., Supp. V) (disability); the National Labor Relations Act, 29 U. S. C. § 158(a) (union activities); the Equal Pay Act of 1963, 29 U. S. C. § 206(d) (sex). The ADEA incorporates some features of both Title VII and the Fair Labor Standards Act of 1938, which has led us to describe it as “something of a hybrid.” Lorillard v. Pons, 434 U. S. 575, 578 (1978). The substantive, antidiscrimination provisions of the ADEA are modeled upon the prohibitions of Title VIÍ. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985); Lorillard v. Pons, supra, at 584. Its remedial provisions incorporate by reference the provisions of the Fair Labor Standards Act of 1938. 29 U.S.C. § 626(b). When confronted with a violation of the ADEA, a district court is authorized to afford relief by means of reinstatement, backpay, injunctive relief, declaratory judgment, and attorney’s fees. Ibid.; see also Lorillard v. Pons, supra, at 584. In the case of a willful violation of the Act, the ADEA authorizes an award of liquidated damages equal to the backpay award. 29 U. S. C. § 626(b). The Act also gives federal courts the discretion to “grant such legal or equitable relief as may be appropriate to effectuate the purposes of [the Act].” Ibid.

The ADEA and Title VII share common substantive features and also a common purpose: “the elimination of discrimination in the workplace.” Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979). Congress designed the remedial measures in these statutes to serve as a “spur or catalyst” to cause employers “to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges” of discrimination. Albemarle Paper Co. v. Moody, 422 U. S. 405, 417-418 (1975) (internal quotation marks and citation omitted); see also Franks v. Bowman Transp. Co., 424 U. S. 747, 763 (1976). Deterrence is one object of these statutes. Compensation for injuries caused by the prohibited discrimination is another. Albemarle Paper Co. v. Moody, supra, at 418; Franks v. Bowman Transp. Co., supra, at 763-764. The ADEA, in keeping with these purposes, contains a vital element found in both Title VII and the Fair Labor Standards Act: It grants an injured employee a right of action to obtain the authorized relief 29 U. S. C. § 626(c). The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the ADEA. See Alexander v. Gardner-Denver Co., 415 U. S. 36, 45 (1974) (“[T]he private litigant [in Title VII] not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices”); see also Teamsters v. United States, 431 U. S. 324, 364 (1977). It would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act.

The objectives of the ADEA are furthered when even a single employee establishes that an employer has discriminated against him or her. The disclosure through litigation of incidents or practices that violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act’s operation or entrenched resistance to its commands, either of which can be of industry-wide significance. The efficacy of its enforcement mechanisms becomes one measure of the success of the Act.

The Court of Appeals in this case relied upon two of its earlier decisions, Johnson v. Honeywell Information Systems, Inc., 955 F. 2d 409 (CA6 1992); Milligan-Jensen v. Michigan Technological Univ., 975 F. 2d 302 (CA6 1992), and the opinion of the Court of Appeals for the Tenth Circuit in Summers v. State Farm Mutual Automobile Ins. Co., 864 F. 2d 700 (1988). Consulting those authorities, it declared that it had “firmly endorsed the principle that after-acquired evidence is a complete bar to any recovery by the former employee where the employer can show it would have fired the employee on the basis of the evidence.” 9 F. 3d, at 542. Summers, in turn, relied upon our decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), but that decision is inapplicable here.

In Mt. Healthy we addressed a mixed-motives case, in which two motives were said to be operative in the employer’s decision to fire an employee. One was lawful, the other (an alleged constitutional violation) unlawful. We held that if the lawful reason alone would have sufficed to justify the firing, the employee could not prevail in a suit against the employer. The case was controlled by the difficulty, and what we thought was the lack of necessity, of disentangling the proper motive from the improper one where both played a part in the termination and the former motive would suffice to sustain the employer’s action. Id., at 284-287.

That is not the problem confronted here. As we have said, the case comes to us on the express assumption that an unlawful motive was the sole basis for the firing. McKen-non’s misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed-motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer’s motives in ordering the discharge, an essential element in determining whether the employer violated the federal antidiscrimination law. See Price Waterhouse v. Hopkins, 490 U. S. 228, 252 (1989) (plurality opinion) (employer’s legitimate reason for discharge in mixed-motive case will not suffice “if that reason did not motivate it at the time of the decision”); id., at 260-261 (White, J., concurring in judgment); id., at 261 (O’Connor, J., concurring in judgment). As has been observed, “proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made.” Id., at 252 (plurality opinion) (internal quotation marks and citations omitted); see also id., at 260-261 (White, J., concurring in judgment).

Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered. Equity’s maxim that a suitor who engaged in his own reprehensible conduct in the course of the transaction at issue must be denied equitable relief because of unclean hands, a rule which in conventional formulation operated in limine to bar the suitor from invoking the aid of the equity court, 2 S. Symons, Pomeroy’s Equity Jurisprudence § 397, pp. 90-92 (5th ed. 1941), has not been applied where Congress authorizes broad equitable relief to serve important national policies. We have rejected the unclean hands defense “where a private suit serves important public purposes.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 138 (1968) (Sherman and Clayton Antitrust Acts). That does not mean, however, the employee’s own misconduct is irrelevant to all the remedies otherwise available under the statute. The statute controlling this case provides that “the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for [amounts owing to a person as a result of a violation of this chapter].” 29 U. S. C. § 626(b); see also § 216(b). In giving effect to the ADEA, we must recognize the duality between the legitimate interests of the employer and the important claims of the employee who invokes the national employment policy mandated by the Act. The employee’s wrongdoing must be taken into account, we conclude, lest the employer’s legitimate concerns be ignored. The ADEA, like Title VII, is not a general regulation of the workplace but a law which prohibits discrimination. The statute does not constrain employers from exercising significant other prerogatives and discretions in the course of the hiring, promoting, and discharging of their employees. See Price Waterhouse v. Hopkins, supra, at 239 (“Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers’ freedom of choice”). In determining appropriate remedial action, the employee’s wrongdoing becomes relevant not to punish the employee, or out of concern “for the relative moral worth of the parties,” Perma Life Mufflers, Inc. v. International Parts Corp., supra, at 139, but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee’s wrongdoing.

The proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. We do conclude that here, and as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.

The proper measure of backpay presents a more difficult problem. Resolution of this question must give proper recognition to the fact that an ADEA violation has occurred which must be deterred and compensated without undue infringement upon the employer’s rights and prerogatives. The object of compensation is to restore the employee to the position he or she would have been in absent the discrimination, Franks v. Bowman Transp. Co., 424 U. S., at 764, but that principle is difficult to apply with precision where there is after-acquired evidence of wrongdoing that would have led to termination on legitimate grounds had the employer known about it. Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. In determining the appropriate order for relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party. An absolute rule barring any recovery of backpay, however, would undermine the ADEA’s objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from age discrimination.

Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. The concern that employers might as a routine matter undertake extensive discovery into an employee’s background or performance on the job to resist claims under the Act is not an insubstantial one, but we think the authority of the courts to award attorney’s fees, mandated under the statute, 29 U. S. C. §§ 216(b), 626(b), and to invoke the appropriate provisions of the Federal Rules of Civil Procedure will deter most abuses.

The judgment is reversed, and the case is remanded to the Court of Appeals for the Sixth Circuit for further proceedings consistent with this opinion.

It is so ordered.


source: Caselaw Access Project

author: Per Curiam. Justice Souter, Justice Stevens,

license: Public Domain

text:
    DUNCAN, WARDEN v. HENRY
    No. 94-941.
    Decided January 23, 1995
   Per Curiam.

Respondent, a rector and dean of a church day school, was tried and convicted in state court of sexually molesting a 5-year-old student. At trial, respondent objected to testimony by the parent of another child who claimed to have been molested 20 years previously. His objection was based on Cal. Evid. Code Ann. §352 (West 1966). On direct appeal, he pursued his evidentiary objection and requested the appellate court to find that the error was a “miscarriage of justice” under the California Constitution. California applies this provision in determining whether or not an error was harmless. People v. Watson, 46 Cal. 2d 818, 299 P. 2d 243 (1956). The California Court of Appeal found the error harmless and affirmed respondent’s conviction. People v. Henry, No. CR23041 (2d Dist. 1990), App. D to Pet. for Cert. 6.

Respondent then filed a petition for writ of habeas corpus in federal court, alleging that the evidentiary error amounted to a denial of due process under the United States Constitution. The District Court granted the petition and the Court of Appeals for the Ninth Circuit affirmed. Henry v. Estelle, 33 F. 3d 1037 (1994). The court held that respondent had exhausted his state remedies even though he had not claimed a violation of any federal constitutional right in the state proceedings:

“In his direct appeal in state court, Henry did not label his claim a federal due process violation; he argued rather that Hackett’s testimony was erroneously admitted because irrelevant and inflammatory, and that its admission resulted in a ‘miscarriage of justice’ under the California Constitution. However, to state a federal due process claim it is not necessary to invoke ‘the talis-manie phrase “due process of law”’ or cite ‘book and verse on the federal constitution’ . . . .” Id., at 1040 (citations omitted).

In Picard v. Connor, 404 U. S. 270, 275 (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state courts in order to give the State the “ ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights” (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an eviden-tiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Accord, Anderson v. Harless, 459 U. S. 4 (1982).

Picard and Harless control the outcome in this case. Respondent did not apprise the state court of his claim that the evidentiary ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment. The failure is especially pronounced in that respondent did specifically raise a due process objection before the state court based on a different claim — that the pleading was uncertain as to when the offense occurred. App. D to Pet. for Cert. 8. The California Court of Appeal analyzed the evidentiary error by asking whether its prejudicial effect outweighed its probative value, not whether it was so inflammatory as to prevent a fair trial. 33 F. 3d, at 1046. As recognized by dissenting Judge Brunetti, those standards are no more than “‘somewhat similar,’” id., at 1047, not “virtually identical” as claimed by Justice Stevens, post, at 369. Both Picard and Harless emphasized that mere similarity of claims is insufficient to exhaust. Picard, supra, at 276; Harless, supra, at 6. The state court, when presented with respondent’s claim of error under the California Evidentiary Code, understandably confined its analysis to the application of state law.

Accordingly, the petition for a writ of certiorari is granted and the judgment of the Court of Appeals is

Reversed.

Justice Souter,

with whom Justice Ginsburg and Justice Breyer join,

concurring in the judgment.

I concur in the judgment because respondent’s “miscarriage of justice” claim in state court was reasonably understood to raise a state-law issue of prejudice, not a federal issue of due process. Consequently, no federal claim was “fairly presented to the state courts” within the meaning of Picard v. Connor, 404 U. S. 270, 275 (1971).

Justice Stevens,

dissenting.

Today’s opinion sets forth a new rule of law that is a substantial departure from our precedents. In my opinion, it is unwise for the Court to announce a new rule without first hearing argument on the issue. The Court’s opinion is especially distressing because it creates an exacting pleading requirement that serves no legitimate purpose in our habeas corpus jurisprudence.

In Picard v. Connor, 404 U. S. 270 (1971), after full briefing and argument, the Court issued an opinion carefully explaining the rule that a state prisoner must exhaust his state-court remedies before applying for a federal writ of habeas corpus. We held that the exhaustion requirement is satisfied when “the federal claim has been fairly presented to the state courts.” Id., at 275. We made it clear, however, that the prisoner need not place the correct label on his claim, or even cite the Federal Constitution, as long as the substance of the federal claim has been fairly presented.

As we explained: “Obviously there are instances in which ‘the ultimate question for disposition,’ United States ex rel. Kemp v. Pate, 359 F. 2d 749, 751 (CA7 1966), will be the same despite variations in the legal theory or factual allegations urged in its support. A ready example is a challenge to a confession predicated upon psychological as well as physical coercion.” Id., at 277. Thus, until today, prisoners have not been required to exhaust their federal claims “by citing ‘book and verse on the federal constitution.’” Id., at 278 (citation omitted). Rather, the rule has been simply that they must present “the substance of a federal habeas corpus claim ... to the state courts.” Ibid.

Today the Court tightens the pleading screws by adding the requirement that the state courts “must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Ante, at 365-366. As support for that proposition the Court cites Picard and Anderson v. Harless, 459 U. S. 4 (1982), but neither case is in point. In the former, the Court pointed out that the claim asserted in state court — that an indictment was invalid under Massachusetts law — was different from the equal protection claim first raised in federal court; in the latter, the Court carefully explained why it concluded that the state-law basis for objecting to a jury instruction differed from the federal rule announced in Sandstrom v. Montana, 442 U. S. 510 (1979). While I disagreed with the view that Harless’ federal claim had not been fairly presented to the state courts, see 459 U. S., at 9-12 (dissenting opinion), I surely did not understand the Court’s opinion to hold that the exhaustion doctrine includes an exact labeling requirement.

Nor have the Courts of Appeals demonstrated any such understanding of Harless or Picard. To the contrary, the Circuits have analyzed the exhaustion question without rigidly insisting that a prisoner invoke the “talismanic” language of federal law. See Tamapua v. Shimoda, 796 F. 2d 261, 263 (CA9 1986); see also, e. g., Hawkins v. West, 706 F. 2d 437, 439-440 (CA2 1983); Lesko v. Owens, 881 F. 2d 44, 50 (CA3 1989), cert. denied, 493 U. S. 1036 (1990); West v. Wright, 931 F. 2d 262, 266 (CA4 1991), rev’d on other grounds, 505 U. S. 277 (1992); Satter v. Leapley, 977 F. 2d 1259, 1262 (CA8 1992); Bowser v. Boggs, 20 F. 3d 1060, 1063 (CA10), cert. denied, post, p. 926; Nichols v. Sullivan, 867 F. 2d 1250, 1252-1253 (CA10), cert. denied, 490 U. S. 1112 (1989); Hutchins v. Wainwright, 715 F. 2d 512, 518-519 (CA11 1983), cert. denied, 465 U. S. 1071 (1984).

The new rule the Court announces today is hypertechnical and unwise. It will prolong litigation without serving any valid purpose. The example of a challenge to a coerced confession cited in Picard, 404 U. S., at 277, illustrates the point. If a prisoner presents all his evidence to a state court, and if the standard for judging the voluntariness of a confession under state law is the same as under federal law, the state court has had a fair opportunity to pass on the claim regardless of whether the prisoner relies on both the State and Federal Constitutions or just the former. If the state courts have considered and rejected such a claim on state-law grounds, nothing is to be gained by requiring the prisoner to present the same claim under a different label to the same courts that have already found it insufficient. The cost of needless litigation is, however, significant both to the judicial system, see Harless, 459 U. S., at 8 (Stevens, J., dissenting), and to persons like respondent who are imprisoned despite their meritorious federal claims.

In the case before us today, the Court of Appeals for the Ninth Circuit carefully analyzed the exhaustion issue. On the merits, respondent presented the Court of Appeals with a federal due process claim, the crux of which was that the testimony of Thomas Hackett, a witness for the prosecution, was so inflammatory and irrelevant as to render his trial fundamentally unfair. Cf. Estelle v. McGuire, 502 U. S. 62, 75 (1991) (severely prejudicial evidentiary errors may violate due process). Respondent had challenged the admission of Hackett’s testimony on direct appeal in state court. 33 F. 3d 1037, 1040 (CA9 1994). To be sure, he had cited only state law. Ibid. As carefully explained by the Court of Appeals, however, the standards for addressing respondent’s state-law claims were virtually identical to those applied in federal court on habeas review. Id., at 1041-1042. Thus, after full discussion of the issue, the Ninth Circuit concluded that respondent had exhausted his claims. Judge Brunetti dissented from the majority’s analysis, but on a ground that is entirely different from that advanced by this Court in what appears to be its holding. He did not merely argue that there was no exhaustion because the prisoner had failed to cite the Federal Constitution. Rather, he carefully explained his view that the federal claim differed from the state claim because it was governed by the harmless-error standard in Chapman v. California, 386 U. S. 18 (1967), rather than a California standard similar to Brecht v. Abrahamson, 507 U. S. 619 (1993). I am inclined to believe that the majority had the better of the argument because the Brecht standard would apply in the federal habeas proceeding. But the important point of the dissent is that, like the majority, it correctly perceived the exhaustion question as whether the claim had been fairly presented to the state courts, not whether respondent had attached the correct label.

This Court should not abruptly terminate thoughtful debate among conscientious Circuit judges by summarily announcing a new rule. If we are to depart from the standard set forth in Picard and Harless, we should do so only after thorough consideration with the benefit of full briefing and argument. I respectfully dissent.

       The contrast between the Ninth Circuit’s thoughtful opinion and this Court’s cursory disposition of an important issue is best illustrated by quoting the lower court’s reasoning in full:
      “To satisfy the exhaustion requirement, the petitioner must have fairly presented the substance of his federal claim to the state courts. Picard v. Connor, 404 U. S. 270, 277-78 . . . (1971). The purpose of this ‘fair presentation’ requirement is to ‘provide the state courts with a “fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim.’ Anderson v. Harless, 459 U. S. 4, 6 . . . (1982) (quoting Picard, 404 U. S. at 276-77 . . .). We have held that a federal claim ‘is fairly presented if the petitioner has described the operative facts and legal theory upon which his claim is based.’ Tamapua v. Shimoda, 796 F. 2d 261, 262 (9th Cir. 1986).
      “There is no doubt that Henry presented the ‘operative facts’ to the California court. The question is whether he presented the ‘legal theory.’ Henry’s federal habeas claim is that the erroneous admission of evidence at his state criminal trial, followed by the jury instruction, violated his federal constitutional right to due process and was so prejudicial as to require reversal of the conviction. In his direct appeal in state court, Henry did not label his claim a federal due process violation; he argued rather that Hackett’s testimony was erroneously admitted because irrelevant and inflammatory, and that its admission resulted in a ‘miscarriage of justice’ under the California Constitution. Cal. Const, art. VI, § 13. However, to state a federal due process claim it is not necessary to invoke ‘the talismanic phrase “due process of law’” or cite ‘book and verse on the federal constitution;’ petitioner need only make ‘essentially the same arguments’ before the state and federal courts to exhaust a claim. Tama-pua, 796 F. 2d at 262-63. Thus, under Picard and Anderson, exhaustion requires only that petitioner present ‘the substance of the federal claim’ in state court. Id. at 262. We find that Henry has done so, regarding both his argument that the erroneous admission of the testimony and the instructional error were a violation of his federal due process right and his argument that the error was so prejudicial as to warrant reversal.
      “As to the first point, it is well established that denial of due process in a state criminal trial ‘is the failure to observe that fundamental fairness essential to the very concept of justice. [The court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ Lisenba v.

        California, 314 U. S. 219, 236 .. . (1941). Henry’s federal due process claim is that the admission of Hackett’s testimony, along with the instructions concerning it, deprived him of a fair trial. He argues that Hackett’s testimony was not probative of any material issue in his case unless the jury assumed a fact about which it had heard no testimony: that Hackett’s son’s accusation was true. He further argues that the jury instructions encouraged the jury to make this impermissible, highly prejudicial assumption. His claim is thus that ‘there are no permissible inferences the jury may draw’ from Hackett’s testimony, and that it is ‘of such [inflammatory] quality as necessarily prevents a fair trial.’ Jammal v. Van de Kamp, 926 F. 2d 918, 920 (9th Cir. 1991); see also Estelle v. McGuire, 502 U. S. 62, [70]... (1991) (inflammatory evidence that is irrelevant may work a due process violation).
      “Henry made ‘essentially the same arguments,’ Tamapua, 796 F. 2d at 262, in his opening brief to the California Court of Appeal. He claimed that Hackett’s testimony was ‘not relevant — it had no tendency to prove or disprove any disputed fact that was of consequence to the determination of the action.’ He added that the jury instruction ‘compounded the error’ because, in encouraging the jury to see Hackett’s testimony as relevant, it ‘as much as said that defendant had molested [Hackett’s son] 20 years before.’ The Court of Appeal agreed, and wrote in its disposition that Hackett’s testimony, while ‘inherently inflammatory,’ had ‘no probative value at all.’
      “We reach the same conclusion as to the essential identity of Henry’s state and federal arguments regarding the prejudicial effect of the error. Under California law, a miscarriage of justice is reversible only when ‘it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’ Watson, 299 P. 2d at 254. The federal standard, recently set forth by the Supreme Court in Brecht v. Abrahamson, [507 U. S. 619] (1993), is phrased somewhat differently, but is essentially the same test; the Supreme Court held that in reviewing a collateral challenge based on a ‘trial-type’ constitutional error, a federal court will not reverse the conviction unless the error ‘“had substantial and injurious effect or influence in determining the jury’s verdict.”’ Id., at 623 . . . (quoting Kotteakos v. United States, 328 U. S. 750, 776 . . . (1946)).
      “The errors that occurred at Henry’s trial — the introduction of Hackett’s testimony and the subsequent jury instruction — were clearly errors of the ‘trial type’ because they ‘occurred during the presentation of the case to the jury.’ Arizona v. Fulminante, 499 U. S. 279, 307 . . . (1991). Therefore, under the new Brecht harmless error standard, we must inquire whether the testimony had a ‘substantial and injurious effect or influence’ on the verdict. This standard is similar to the Watson standard used by California courts; under both tests, reversal is required if the error had a significant inculpatory impact. When the California Court of Appeal determined that it was not ‘reasonably probable’ that Henry would have been acquitted had the Hackett testimony not been introduced (the Watson standard), it effectively determined that the testimony had not had a ‘substantial and injurious effect or influence’ on the outcome (the Brecht standard).
      “Henry has thus made ‘essentially the same arguments’ before the state and federal courts regarding both the existence of federal constitutional error and the prejudicial impact thereof. We hold that he has exhausted his state post-conviction remedies.” 33 F. 3d, at 1040-1042 (footnote omitted).

       At the end of its opinion, the Court seems to back away from any ironclad labeling requirement by endorsing Judge Brunetti’s view that respondent’s federal claim was different in important respects from the argument that was presented in state court. If the Court seeks to reverse the Ninth Circuit on these grounds, without overruling the rule of Harless and Picard, much of the language in the Court’s opinion is nothing more than unnecessary dicta. The confusion on this critical point is itself a reason to avoid summary disposition of this case.