author: Justice Scalia Justice Souter, Justice Ginsburg, Justice Stevens,

text:
    BROGAN v. UNITED STATES
    No. 96-1579.
    Argued December 2, 1997
    Decided January 26, 1998
    Scaua, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connok, Kennedy, and Thomas, JJ., joined, and in which Souter, J., joined in part. Souter, J., filed a statement concurring in part and concurring in the judgment, post, p. 408. Ginsburg, J., filed an opinion concurring in the judgment, in which Souter, J., joined, post,
      p. 408. Stevens,. J., filed a dissenting opinion, in which Breyer, J., joined, post, p. 418.

      Stúart Holtzman argued the cause and filed briefs for petitioner.

      Solicitor General Waxman argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Edward C. DuMont, and Nina Goodman:

         Scott L. Nelson and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether there is an exception to criminal liability under 18 U. S. C. § 1001 for a false statement that consists of the mere denial of wrongdoing, the so-called "exculpatory no.”

I

While acting as a union officer during 1987 and 1988, petitioner James Brogan accepted cash payments from JRD Management Corporation, a real estate company whose employees were represented by the union. On October 4,1993, federal agents from the Department of Labor and the Internal Revenue Service visited petitioner at his home. The agents identified themselves and explained that they were seeking petitioner’s cooperation in an investigation of JRD and various individuals. They told petitioner that if he wished to cooperate, he should have an attorney contact the United States Attorney’s Office, and that if he could not afford an attorney, one could be appointed for him.

The agents then asked petitioner if he would answer some questions, and he agreed. One question was whether he had received any cash or gifts from JRD when he was a union officer. Petitioner’s response was “no.” At that point, the agents disclosed that a search of JED headquarters had produced company records showing the contraiy. They also told petitioner that lying to federal agents in the course of an investigation was a crime. Petitioner did not modify his answers, and the interview ended shortly thereafter.

Petitioner was indicted for accepting unlawful cash payments from an employer in violation of 29 U. S. C. §§ 186(b)(1), (a)(2), and (d)(2), and making a false statement within the jurisdiction of a federal agency in violation of 18 U. S. C. § 1001. He was tried, along with several co-defendants, before a jury in the United States District Court for the Southern District of New York, and was found guilty. The United States Court of Appeals for the Second Circuit affirmed the convictions, 96 F. 3d 85 (1996). We granted cer-tiorari on the issue of the “exculpatory no.” 520 U. S. 1263 (1997).

II

At the time petitioner falsely replied “no” to the Government investigators’ question, 18 U. S. C. § 1001 (1988 ed.) provided:

“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

By its terms, 18 U. S. C. § 1001 covers “any” false statement — that is, a false statement “of whatever kind,” United States v. Gonzales, 520 U. S. 1, 5 (1997) (internal quotation marks and citation omitted). The word “no” in response to a question assuredly makes a “statement,” see, e. g., Webster’s New International Dictionary 2461 (2d ed. 1950) (def. 2: “That which is stated; an embodiment in words of facts or opinions”), and petitioner does not contest that his utterance was false or that it was made “knowingly and willfully.” In fact, petitioner concedes that under a “literal reading” of the statute he loses. Brief for Petitioner 5.

Petitioner asks us, however, to depart from the literal text that Congress has enacted, and to approve the doctrine adopted by many Circuits which excludes from the scope of § 1001 the “exculpatory no.” The central feature of this doctrine is that a simple denial of guilt does not come within the statute. See, e. g., Moser v. United States, 18 F. 3d 469, 473-474 (CA7 1994); United States v. Taylor, 907 F. 2d 801, 805 (CA8 1990); United States v. Equihua-Juarez, 851 F. 2d 1222, 1224 (CA9 1988); United States v. Cogdell, 844 F. 2d 179, 183 (CA4 1988); United States v. Tabor, 788 F. 2d 714, 717-719 (CA11 1986); United States v. Fitzgibbon, 619 F. 2d 874, 880-881 (CA10 1980); United States v. Chevoor, 526 F. 2d 178, 183-184 (CA1 1975), cert. denied, 425 U. S. 935 (1976). There is considerable variation among the Circuits concerning, among other things, what degree of elaborated tale-telling carries a statement beyond simple denial. See generally Annot., 102 A. L. R. Fed. 742 (1991). In the present case, however, the Second Circuit agreed with petitioner that his statement would constitute a “true ‘exculpatory n[o]’ as recognized in other circuits,” 96 F. 3d, at 37, but aligned itself with the Fifth Circuit (one of whose panels had been the very first to embrace the “exculpatory no,” see Paternostro v. United States, 311 F. 2d 298 (CA5 1962)) in categorically rejecting the doctrine, see United States v. Rodriguez-Rios, 14 F. 3d 1040 (CA5 1994) (en banc).

Petitioner’s argument in support of the “exculpatory no” doctrine proceeds from the major premise that § 1001 criminalizes only those statements to Government investigators that “pervert governmental functions”; to the minor premise that simple denials of guilt to Government investigators do not pervert governmental functions; to the conclusion that § 1001 does not criminalize simple denials of guilt to Government investigators. Both premises seem to us mistaken. As to the minor: We cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function. Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard of. Moreover, as we shall see, the only support for the “perversion of governmental functions” limitation is a statement of this Court referring to the possibility (as opposed to the certainty) of perversion of function — a possibility that exists whenever investigators are told a falsehood relevant to their task.

In any event, we find no basis for the major premise that only those falsehoods that pervert governmental functions are covered by § 1001. Petitioner derives this premise from a comment we made in United States v. Gilliland, 312 U. S. 86 (1941), a ease involving the predecessor to § 1001. That earlier version of the statute subjected to criminal liability “ ‘whoever shall knowingly and willfully . . . make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or-fictitious statement or entry, in any matter within the jurisdiction of any department or agency of the United States....'" Id., at 92-93. The defendant in Gilliland, relying on the' interpretive canon ejusdem, generis, argued that the statute should be read to apply only to matters in which the Government has a financial or proprietary interest. In rejecting that argument, we noted that Congress had specifically amended the statute to cover “ ‘any matter within the jurisdiction of any department or agency of the United States,’ ” thereby indicating “the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” Id., at 93. Petitioner would elevate this statement to a holding that § 1001 does not apply where a perversion of governmental functions does not exist. But it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy — even assuming that it is possible to identify that evil from something other than the text of the statute itself.. The holding of Gilliland certainly does not exemplify such a practice, since it rejected the defendant’s argument for a limitation that the text of the statute would not bear. And even the relied-upon dictum from Gilliland does not support restricting text to supposed purpose, but to the contrary acknowledges the reality that the reach of a statute often exceeds the precise evil to be eliminated. There is no inconsistency whatever between the proposition that Congress intended “to protect the authorized functions of governmental departments and agencies from the perversion which might result” and the proposition that the statute forbids all “the deceptive practices described.” Ibid.

The second line of defense that petitioner invokes for the “exculpatory no” doctrine is inspired by the Fifth Amendment. He argues that a literal reading of § 1001 violates the “spirit” of the Fifth Amendment because it places a “cornered suspect” in the “cruel trilemma” of admitting guilt, remaining silent, or .falsely denying guilt. Brief for Petitioner 11. This “trilemma” is wholly of the guilty suspect’s own making, of course. An innocent person will not find himself in a similar quandary (as one commentator has put it, the innocent person lacks even a “lemma,” Allen, The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets, 67 U. Colo. L. Rev. 989, 1016 (1996)). And even the honest and contrite guilty person will not regard the third prong of the “trilemma” (the blatant lie) as an available option. The bon mot “cruel trilemma” first appeared in Justice Goldberg’s opinion for the Court in Murphy v. Waterfront Comm’n of N. Y. Harbor, 878 U. S. 52 (1964), where it was used to explain the importance of a suspect’s Fifth Amendment right to remain silent when subpoenaed to testify in an official inquiry. Without that right, the opinion said, he would be exposed “to the cruel trilemma of self-accusation, perjury or contempt.” Id., at 55. In order to validate the “exculpatory no,” the elements of this “cruel trilemma” have now been altered — ratcheted up, as it were, so that the right to remain silent, which was the liberation from the original trilemma, is now itself a cruelty. We are not disposed to write into our law this species of compassion inflation.

Whether or not the predicament of the wrongdoer run to ground tugs at the heartstrings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. “[Pjroper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely.” United States v. Ap felbaum, 445 U. S. 115, 117 (1980). See also United States v. Wong, 431 U. S. 174, 180 (1977); Bryson v. United States, 396 U. S. 64, 72 (1969). Petitioner contends that silence is an “illusory” option because a suspect may fear that his silence will be used against him later, or may not even know that silence is an available option. Brief for Petitioner 12-13. As to the former: It is well established that the faet that a person’s silence can be used against him — either as substantive evidence of guilt or to impeach him if he takes the stand — does not exert a form of pressure that exonerates an otherwise unlawful lie. See United States v. Knox, 396 U. S. 77, 81-82 (1969). And as for the possibility that the person under investigation may be unaware of his right to remain silent: In the modern age of frequently dramatized “Miranda” warnings, that is implausible. Indeed, we found it implausible (or irrelevant) 30 years ago, unless the suspect was “in custody or otherwise deprived of his freedom of action in any significant way,” Miranda v. Arizona, 384 U. S. 436, 445 (1966).

Petitioner repeats the argument made by many supporters of the “exculpatory no,” that the doctrine is necessary to eliminate the grave risk that § 1001 will become an instrument of prosecutorial abuse. The supposed danger is that overzealous prosecutors will use this provision as a means of “piling on” offenses — sometimes punishing the denial of wrongdoing more severely than the wrongdoing itself. The objectors’ principal grievance on this score, however, lies not with the hypothetical prosecutors but with Congress itself, which has decreed the obstruction of a legitimate investigation to be a separate offense, and a serious one. It is not for us to revise that judgment. Petitioner has been unable to demonstrate, moreover, any history of prosecutorial excess, either before or after widespread judicial acceptance of the “exculpatory no.” And finally, if there is a problem of supposed “overreaching” it is hard to see how the doctrine of the “exculpatory no” could solve it. It is easy enough for an interrogator to press the liar from the initial simple denial to a more detailed fabrication that would not qualify for the exemption.

Ill

A brief word in response to the dissent’s assertion that the Court may interpret a criminal statute more narrowly than it is written: Some of the eases it cites for that proposition represent instances in which the Court did not purport to be departing from a reasonable reading of the text, United States v. X-Citement Video, Inc., 513 U. S. 64, 77-78 (1994); Williams v. United States, 458 U. S. 279, 286-287 (1982). In the others, the Court applied what it thought to be a background interpretive principle of general application. Staples v. United States, 511 U. S. 600, 619 (1994) (construing statute to contain common-law requirement of mens rea); Sorrells v. United States, 287 U. S. 435, 446 (1932) (construing statute not to cover violations produced by entrapment); United States v. Palmer, 3 Wheat. 610, 631 (1818) (construing statute not to apply extraterritorially to noncitizens). Also into this last category falls the dissent’s correct assertion that the present statute does not “mak[e] it a crime for an undercover narcotics agent to make a false statement to a drug peddler.” Post, at 419 (opinion of Stevens, J.). Criminal prohibitions do not generally apply to reasonable enforcement actions by officers of the law. See, e.g., 2 P. Robinson, Criminal Law Defenses § 142(a), p. 121 (1984) (“Every American jurisdiction recognizes some form of law enforcement authority justification”).

It is one thing to acknowledge and accept such well defined (or even newly enunciated), generally applicable, background principles of assumed legislative intent. It is quite another to espouse the broad proposition that criminal statutes do not have to .be read as broadly as they are written, but are subject to ease-by-ease exceptions. The problem with adopting such an expansive, user-friendly judicial rule is that there is no way of knowing when, or how, the rule is to be invoked. As to the when: The only reason Justice Stevens adduces for invoking it here is that a felony conviction for this offense seems to him harsh. Which it may well be. But the instances in which courts may ignore harsh penalties are set forth in the Constitution, see Art. I, § 9; Art. III, § 3; Amdt. 8; Amdt. 14, § 1; and to go beyond them will surely leave us at sea. And as to the how: There is no reason in principle why the dissent chooses to mitigate the harshness by saying that § 1001 does not embrace the “exculpatory no,” rather than by saying that § 1001 has no application unless the defendant has been warned of the consequences of lying, or indeed unless the defendant has been put under oath. We are again at sea.

To be sure, some of this uncertainty would be eliminated, at our stage of judging, if we wrenched out of its context the principle quoted by the dissent from Sir Edward Coke, that “communis opinio is of good authoritie in law,” and if we applied that principle consistently to a consensus in the judgments of the courts of appeals. (Of course the courts of appeals themselves, and the district courts, would still be entirely at sea, until such time as a consensus would have developed.) But the dissent does not propose, and its author has not practiced, consistent application of the principle, see, e.g., Hubbard v. United States, 514 U. S. 695, 713 (1995) (opinion of Stevens, J.) (“We think the text of § 1001 forecloses any argument that we should simply ratify the body of eases adopting the judicial function exception”); Chapman v. United States, 500 U. S. 453, 468 (1991) (Stevens, J., dissenting) (disagreeing with the unanimous conclusions of the Courts of Appeals that interpreted the criminal statute at issue); thus it becomes yet another user-friendly judicial rule to be invoked ad libitum.

In sum, we find nothing to support the “exculpatory no” doctrine except the many Court of Appeals decisions that have embraced it. While communis error facit jus may be a sadly accurate description of reality, it is not the normative basis of this Court’s jurisprudence. Courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so, and no matter how widely the blame may be spread. Because the plain language of § 1001 admits of no exception for an “exculpatory no,” we affirm the judgment of the Court of Appeals.

It is so ordered.

Justice Souter,

concurring in part and concurring in the judgment.

I join the opinion of the Court except for its response to petitioner’s argument premised on the potential for prosecutorial abuse of 18 U. S. C. § 1001 as now written {ante, at 405-406). On that point I have joined Justice Ginsburg’s opinion espousing congressional attention to the risks inherent in the statute’s current breadth.

Justice Ginsburg,

with whom Justice Souter joins,

concurring in the judgment.

Because a false denial fits the unqualified language of 18 U. S. C. § 1001, I concur in the affirmance of Brogan’s conviction. I write separately, however, to call attention to the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes. I note, at the same time, how far removed the “exculpatory no” is from the problems Congress initially sought to address when it proscribed falsehoods designed to elicit a benefit from the Government or to hinder Government operations.

I

At the time of Brogan’s offense, § 1001 made it a felony “knowingly and willfully” to make “any false, fictitious or fraudulent statements or representations” in “any matter within the jurisdiction of any department or agency of the United States.” 18 U. S. C. § 1001 (1988 ed.). That encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt.

This case is illustrative. Two federal investigators paid an unannounced visit one evening to James Brogan’s home. The investigators already possessed records indicating that Brogan, a union officer, had received cash from a company that employed members of the union Brogan served. (The agents gave no advance warning, one later testified, because they wanted to retain the element of surprise. App. 5.) When the agents asked Brogan whether he had received any money or gifts from the company, Brogan responded “No.” The agents asked no further questions. After Brogan just said “No,” however, the agents told him: (1) the Government had in hand the records indicating that his answer was false; and (2) lying to federal agents in the course of an investigation is a crime. Had counsel appeared on the spot, Brogan likely would have received and followed advice to amend his answer, to say immediately: “Strike that; I plead not guilty." But no counsel attended the unannounced interview, and Brogan divulged nothing more. Thus, when the interview ended, a federal offense had been completed — even though, for all we can tell, Brogan’s unadorned denial misled no one.

A further illustration. In United States v. Tabor, 788 F. 2d 714 (CA11 1986), an Internal Revenue Service (IRS) agent discovered that Tabor, a notary public, had violated Florida law by notarizing a deed even though two signatories had not personally appeared before her (one had died five weeks before the document was signed). With this knowledge in hand, and without “warn[ing] Tabor of the possible consequences of her statements,” id., at 718, the agent went to her home with a deputy sheriff and questioned her about the transaction. When Tabor, regrettably but humanly, denied wrongdoing, the Government prosecuted her under § 1001. See id., at 716. An IRS agent thus turned a violation of state law into a federal felony by eliciting a lie that misled no one. (The Eleventh Circuit reversed the § 1001 conviction, relying on the “exculpatory no” doctrine. Id., at 719.)

As these not altogether uncommon episodes show, § 1001 may apply to encounters between agents and their targets “under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction.” United States v. Ehrlichman, 379 F. Supp. 291, 292 (DC 1974). Because the questioning occurs in a noncustodial setting, the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker’s mind on the importance of his or her answers. As in Brogan’s ease, the target may not be informed that a false “No” is a criminal offense until after he speaks.

At oral argument, the Solicitor General forthrightly observed that § 1001 could even be used to “escalate completely innocent conduct into a felony.” Tr. of Oral Arg. 36. More likely to occur, “if an investigator finds it difficult to prove some elements of a crime, she can ask questions about other elements to which she already knows the answers. If the suspect lies, she can then use the crime she has prompted as leverage or can seek prosecution for the lie as a substitute for the crime she cannot prove.” Comment, False Statements to Federal Agents: Induced Lies and the Exculpatory No, 57 U. Chi. L. Rev. 1273, 1278 (1990) (footnote omitted). If the statute of limitations has run on an offense — as it had on four of the five payments Brogan was accused of accepting — the prosecutor can endeavor to revive the ease by instructing an investigator to elicit a fresh denial of guilt. Prosecution in these circumstances is not an instance of Government “punishing the denial of wrongdoing more severely than the wrongdoing itself,” ante, at 405; it is, instead, Government generation of a crime when the . underlying suspected wrongdoing is or has become nonpunishable.

It is doubtful Congress intended § 1001 to east so large a net. First enacted in 1868 as part of the prohibition against filing fraudulent claims with the Government, the false statement statute was originally limited to statements that related to such filings. See Act of Mar. 2, 1863, ch. 67, 12 Stat. 696-697. In 1918, Congress broadened the prohibition to cover other false statements made “for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States.” Act of Oct. 23, 1918, ch. 194, § 35, 40 Stat. 1015-1016. But the statute, we held, remained limited to “cheating the Government out of property or money.” United States v. Cohn, 270 U. S. 339, 346 (1926).

“The restricted scope of the 1918 Act [as construed in Cohn] became a serious problem with the advent of the New Deal programs in the 1930’s.” United States v. Yermian, 468 U. S. 63, 80 (1984) (Rehnquist, J., dissenting); The new regulatory agencies relied heavily on self-reporting to assure compliance; if regulated entities could file false reports with impunity, significant Government interests would be subverted even though the Government would not be deprived of any property or money. See generally United States v. Gilliland, 312 U. S. 86, 93-95 (1941). The Secretary of the Interior, in particular, expressed concern that “there were at present no statutes outlawing, for example, the presentation of false documents and statements to the Department of the Interior in connection with the shipment of ‘hot oil,’ or to the Public Works Administration in connection with the transaction of business with that agency.” United States v. Yermian, 468 U. S., at 80 (Rehnquist, J., dissenting).

In response to the Secretary’s request, Congress amended the statute in 1934 to include the language that formed the basis for Brogan’s prosecution. See Hubbard v. United States, 514 U. S. 695, 707 (1995) (“We have repeatedly recognized that the 1934 Act was passed at the behest of ‘the Secretary of the Interior to aid the enforcement of laws relating to the functions of the Department of the Interior.’”) (quoting United States v. Gilliland, 312 U. S., at 93-94). Since 1934, the statute, the relevant part of which remains the same today, has prohibited the making of “any false or fraudulent statements or representations ... in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder.” Act of June 18, 1934, ch. 587, § 35, 48 Stat. 996.

As the lower courts that developed the “exculpatory no” doctrine concluded, the foregoing history demonstrates that § 1001’s “purpose was to protect the Government from the affirmative, aggressive and voluntary actions of persons who take the initiative; and to protect the Government from being the victim of some positive statement which has the tendency and effect of perverting normal and proper governmental activities and functions.” Paternostro v. United States, 311 F. 2d 298, 302 (CA5 1962); accord, United States v. Stark, 131 F. Supp. 190, 205 (Md. 1955). True, “the 1934 amendment, which added the current statutory language, was not limited by any specific set of circumstances that may have precipitated its passage.” United States v. Rodgers, 466 U. S. 475, 480 (1984). Yet it is noteworthy that Congress enacted that amendment to address concerns quite far removed from suspects’ false denials of criminal misconduct, in the course of informal interviews initiated by Government agents. Cf. ALI, Model Penal Code § 241.3, Comment 1, p. 151 (1980) (“inclusion of oral misstatements” in § 1001 was “almost [an] accidental consequenefe] of the history of that law”).

III

Even if the encompassing language of §1001 precludes judicial declaration of an “exculpatory no” defense, the core concern persists: “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.” Sherman v. United States, 356 U. S. 369, 372 (1958). The Government has not been blind to this concern. Notwithstanding the prosecution in this case and the others eited supra, at 410-411, and n. 2, the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators. Indeed, the Government once asserted before this Court that the arguments supporting the “exculpatory no” doctrine “are forceful even if not necessarily dispositive.” Memorandum for United States in Nunley v. United States, O. T. 1977, No. 77-5069, p. 7; see also id., at 7-8 (explaining that “[t]he legislative history affords no express indication that Congress meant Section 1001 to prohibit simple false denials of guilt to government officials having no regulatory responsibilities other than the discovery and deterrence of crime”).

In Nunley, we vacated a § 1001 conviction and remanded with instructions to dismiss the indictment, at the Solicitor General’s suggestion. Nunley v. United States, 434 U. S. 962 (1977). The Government urged such a course because the prosecution had been instituted without prior approval from the Assistant Attorney General, and such permission was “normally refused” in eases like Nunley’s, where the statements “essentially constituted] mere denials of guilt.” Memorandum for United States, supra, at 8.

Since Nunley, the Department of Justice has maintained a policy against bringing §1001 prosecutions for statements amounting to an “exculpatory no.” At the time the charges against Brogan were filed, the United States Attorneys’ Manual firmly declared: “Where the statement takes the form of an ‘exculpatory no,’ 18 U. S. C. § 1001 does not apply regardless who asks the question.” United States Attorneys’ Manual ¶ 9-42.160 (Oct. 1, 1988). After the Fifth Circuit abandoned the “exculpatory no” doctrine in United States v. Rodriguez-Rios, 14 F. 3d 1040 (1994) (en banc), the manual was amended to read: “It is the Department’s policy that it is not appropriate to charge a Section 1001 violation where a suspect, during an investigation, merely denies his guilt in response to questioning by the government.” United States Attorneys’ Manual ¶ 9-42.160 (Feb. 12, 1996).

. These pronouncements indicate, at the least, the dubious propriety of bringing felony prosecutions for bare exculpatory denials informally made to Government agents. Although today’s decision holds that such prosecutions can be sustained under the broad language of §1001, the Department of Justice’s prosecutorial guide continues to caution restraint in each exercise of this large authority.

HH

The Court’s opinion does not instruct lower courts automatically to sanction prosecution or conviction under § 1001 in all instances of false denials made to criminal investigators. The Second Circuit, whose judgment the Court affirms, noted some reservations. That court left open the question whether “to violate Section 1001, a person must know that it is unlawful to make such a false statement.” United States v. Wiener, 96 F. 3d 35, 40 (1996). And nothing that court or this Court said suggests that “the mere denial of criminal responsibility would be sufficient to prove such [knowledge].” Ibid. Moreover, “a trier of fact might acquit on the ground that a denial of guilt in circumstances indicating surprise or other lack of reflection was not the product of the requisite criminal intent,” ibid., and a jury could be instructed that it would be permissible to draw such an inference. Finally, under the statute currently in force, a false statement must be “materia[1]” to violate § 1001. See False Statements Accountability Act of 1996, Pub. L. 104-292, § 2, 110 Stat. 3459.

The controls now in place, however, do not meet the basic issue, i. e., the sweeping generality of § 1001’s language. Thus, the prospect remains that an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial. Congress alone can provide the appropriate instruction.

Congress has been alert to our decisions in this area, as its enactment of the False Statements Accountability Act of 1996. (passed in response to our decision in Hubbard v. United States, 514 U. S. 695 (1995)) demonstrates. Similarly, after today’s decision, Congress may advert to the “exculpatory no” doctrine and the problem that prompted its formulation.

The matter received initial congressional consideration some years ago. Legislation to revise and recodify the federal criminal laws, reported by the Senate Judiciary Committee in 1981 but never enacted, would have established a “defense to a prosecution for an oral false statement to a law enforcement officer” if “the statement was made ‘during the course of an investigation of an offense or a possible offense and the statement consisted of a denial, unaccompanied by any other false statement, that the declarant committed or participated in the commission of such offense.'” S. Rep. No. 97-307, p. 407 (1981). In common with the “exculpatory no” doctrine as it developed in the lower courts, this 1981 proposal would have made the defense “available only when the false statement consists solely of a denial of involvement in a crime.” Ibid. It would not have protected a denial “if accompanied by any other false statement (e. g., the assertion of an alibi).” Ibid.

The 1981 Senate bill covered more than an “exculpatory no” defense; it addressed frontally, as well, unsworn oral statements of the kind likely to be made without careful deliberation or knowledge of the statutory prohibition against false statements. The bill would have criminalized false oral statements to law enforcement officers only “where the statement is either volunteered (e. g., a false alarm or an unsolicited false accusation that another person has committed an offense) or is made after a warning, designed to impress on the defendant the seriousness of the interrogation and his obligation to speak truthfully.” Id., at 408.

More stringent revision, following the lead of the Model Penal Code and the 1971 proposal of a eongressionally chartered law reform commission, would excise unsworn oral statements from § 1001 altogether. See ALI, Model Penal Code §§ 241.3, 241.4, 241.5 (1980); National Commission on Reform of Federal Criminal Laws, Final Report §§ 1352, 1354 (1971). A reeodifieation proposal reported by the House Judiciary Committee in 1980 adopted that approach. It would have applied the general false statement provision only to statements made in writing or recorded with the speaker’s knowledge, see H. R. Rep. No. 96-1396, pp. 181-183 (1980); unsworn oral statements would have been penalized under separate provisions, and only when they entailed misprision of a felony, false implication of another, or false statements, about an emergency, see id., at 182. The 1971 law reform commission would have further limited §1001; its proposal excluded from the false statement prohibition all “information given during the course of an investigation into possible commission of an offense unless the information is given in an official proceeding or the declarant is otherwise under a legal duty to give the information.” National Commission on Reform of Federal Criminal Laws, Final Report §1852(3).

In sum, an array of recommendations has been made to refine § 1001 to block the statute’s use as a generator of erime while preserving the measure’s important role in protecting the workings of Government. I do not divine from the Legislature’s silence any ratification of the “exculpatory no” doctrine advanced in lower courts. The extensive airing this issue has received, however, may better inform the exercise of Congress’ lawmaking authority.

Justice Stevens,

with whom Justice Breyer joins,

dissenting.

Although I agree with nearly all of what Justice Ginsburg has written in her concurrence — a concurrence that raises serious concerns that the Court totally ignores — I dissent for the following reasons.

The mere fact that a false denial fits within the unqualified language of 18 U. S. C. § 1001 is not, in my opinion, a sufficient reason for rejecting a well-settled interpretation of that statute. It is not at all unusual for this Court to conclude that the literal text of a criminal statute is broader than the coverage intended by Congress. See, e. g., Staples v. United States, 511 U. S. 600, 605, 619 (1994); United States v. X-Citement Video, Inc., 518 U. S. 64, 68-69 (1994) (departing from “most natural grammatical reading” of statute because of “anomalies which result from this construction,” and presumptions with respect to scienter in criminal statutes and avoiding constitutional questions); id., at 81 (Scalia, J., dissenting) (stating that lower court interpretation of statute rejected by the Court was “quite obviously the only grammatical reading”); Williams v. United States, 458 U. S. 279, 286 (1982) (holding that statute prohibiting the making of false statements to a bank was inapplicable to depositing of a “bad check” because “the Government’s interpretation ... would make a surprisingly broad range of unremarkable conduct a violation of federal law”); Sorrells v. United States, 287 U. S. 485, 448 (1932) (“We are unable to conclude that it was the intention of the Congress in enacting [a Prohibition Act] statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them”); United States v. Palmer, 3 Wheat. 610, 631 (1818) (opinion of Marshall, C. J.) (holding that although “words ‘any person or persons,’ [in maritime robbery statute] are broad enough to comprehend every human being[,] . . . general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them”). Although the text of § 1001, read literally, makes it a crime for an undercover narcotics agent to make a false statement to a drug peddler, I am confident that Congress did not intend any such result. As Justice Ginsburg has explained, it seems equally clear that’ Congress did not intend to make every “exculpatory no” a felony.

Even if that were not clear, I believe the Court should show greater respect for the virtually uniform understanding of the bench and the bar that persisted for decades with, as Justice Ginsburg notes, ante, at 414-415, the approval of this Court as well as the Department of Justice. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 192-198 (1994) (STEVENS, J., dissenting); McNally v. United States, 483 U. S. 350, 362-364, 376 (1987) (Stevens, J., dissenting). Or, as Sir Edward Coke phrased it, “it is the common opinion, and communis opinio is of good authoritie in law.” 1 E. Coke, Institutes 186a (15th ed. 1794).

Accordingly, I respectfully dissent.

       “The government need not show that because of the perjured testimony, the grand jury threw in the towel.... Grand jurors ... are free to disbelieve a witness and persevere in an investigation without immunizing a perjurer.” United States v. Abrams, 568 F. 2d 411, 421 (CA5), cert. denied, 437 U.S 903 (1978). See generally 70 C. J. S. Perjury § 13, pp. 260-261 (1987).

       “Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects aldn to the one with specific enumeration.” Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117, 129 (1991).

       Coke said this in reference not to statutory law but to the lex commu-nis, which most of his illustrious treatise dealt with. 1 E. Coke, Institutes 186a (15th ed. 1794). As applied to that, of course, the statement is not only true but almost an iteration; it amounts to saying that the common law is the common law.

       See Note, Fairness in Criminal Investigations Under the Federal False Statement Statute, 77 Colum. L. Rev. 316, 325-326 (1977) (“Since agents may often expect a suspect to respond falsely to their questions, the statute is a powerful instrument with which to trap a potential defendant. Investigators need only informally approach the suspect and elicit a false reply and they are assured of a conviction with a harsh penalty even if they are unable to prove the underlying substantive crime.” (footnotes omitted)).

       See, e.g., United States v. Stoffey, 279 F. 2d 924, 927 (CA7 1960) (defendant prosecuted for falsely denying, while effectively detained by agents, that he participated in illegal gambling; court concluded that “purpose of the agents was not to investigate or to obtain information, but to obtain admissions,” and that “they were not thereafter diverted from their course by alleged false statements of defendant”); United States v. Dempsey, 740 F. Supp. 1299, 1306 (ND Ill. 1990) (after determining what charges would be brought against defendants, agents visited them “with the purpose of obtaining incriminating statements”; when the agents “received denials from certain defendants rather than admissions,” Government brought § 1001 charges); see also United States v. Goldfine, 538 F. 2d 815, 820 (CA9 1976) (agents asked defendant had he made any out-of-state purchases, investigators already knew he had, he stated he had not; based on that false statement, defendant was prosecuted for violating § 1001).

       Cf. United States v. Bush, 503 F. 2d 813, 815-819 (CA5 1974) (after statute of limitations ran on § 1001 charge for defendant Bush’s first affidavit containing a false denial, IRS agents elicited a new affidavit, in which Bush made a new false denial; court held that “Bush cannot be prosecuted for making a statement to Internal Revenue Service agents when those agents aggressively sought such statement, when Bush’s answer was essentially an exculpatory W as to possible criminal activity, and when there is a high likelihood that Bush was under suspicion himself at the time the statement was taken and yet was in no way warned of this possibility”).

         Congress separated the false claims from the false statements provisions in the 1948 recodification, see Act of June 25, 1948, §§ 287, 1001, 62 Stat. 698, 749, and made unrelated substantive changes in 1996, see False Statements Accountability Act of 1996, Pub. L. 104-292, 110 Stat. 3459.

       Deterrence of Government-manufactured crimes is not at stake where a false denial of wrongdoing forms the basis, not for the imposition of criminal liability, but for an adverse employment action. For that reason, Lachance v. Erickson, ante, p. 262, is inapposite.

       While this ease was pending before us, the Department of Justice issued yet another version of the manual, which deleted the words “that it is” and “appropriate” from the sentence just quoted. The new version reads: “It is the Department’s policy not to charge a Section 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government.” United States Attorneys’ Manual ¶ 9-42.160 (Sept. 1997).

       The Sentencing Guidelines evince a similar policy judgment. Although United States Sentencing Commission, Guidelines Manual § 3C1.1 (Nov. 1997) establishes a two-level increase for obstruction of justice, the application notes provide that a “defendant’s denial of guilt (other than a denial of guilt under oath that constitutes peijury) ... is not a basis for application of this provision.” § 3C1.1, comment., n. 1.

       See, e. g., United States v. Moore, 27 F. 3d 969, 979 (CA4 1994) (“exculpatory no” doctrine covers simple denials of criminal acts, but “does not extend to misleading exculpatory stories or affirmative statements . . . that divert the government in its investigation of criminal activity”).

         “Meaning in law depends upon an understanding of purpose. Law’s words, however technical they may sound, are not magic formulas; they must be read in light of their purposes, if we are to avoid essentially arbitrary applications and harmful results.” Behrens v. Pelletier, 516 U. S. 299, 324 (1996) (BREYER, J., dissenting).

       It merits emphasis that the in support of its confession of error in Nunley v. United States, 434 U. S. 962 (1977), contains a detailed discussion of the many cases that had endorsed the “exculpatory no” doctrine after the 1934 amendment to § 1001. Memorandum for United States in Nunley v. United States, O. T. 1977, No. 77-5069, pp. 4-8.

       Although I do not find the case the decision in McNally, this comment is nevertheless apt:
      “Perhaps the most casual — almost summary — rejection of the accumulated wisdom of the many distinguished federal judges who have thoughtfully considered and correctly answered the question these cases present. The quality of this Court’s work is most suspect when it stands alone, or virtually so, against a tide of well-considered opinions issued by state or federal courts. In these cases I am convinced that those judges correctly understood the intent of the Congress that enacted this statute. Even if I were not so persuaded, I could not join a rejection of such a longstanding, consistent interpretation of a federal statute.” McNally v. United States, 483 U. S., at 376-377 (Stevens, J., dissenting).

       The majority’s invocation of the maxim communis error facit jus adds little weight to their argument. As Lord Ellenborough stated in Isherwood v. Oldknow, 3 Maule & Selwyn 382, 396-397 (K. B. 1815):
      “It has been sometimes said, communis error facit jus; but I say com-munis opinio is evidence of what the law is; not where it is an opinion merely speculative and theoretical floating in the minds of persons, but where it has been made the ground-work and substratum of practice.” See also United States v. The Reindeer, 27 F. Cas. 758, 762 (No. 16, 145) (CC RI 1848).


source: Caselaw Access Project

author:
Justice Kennedy Justice Beeyee,
      Justice Scalia, Justice Thomas,

license: Public Domain

text:
    OUBRE v. ENTERGY OPERATIONS, INC.
    No. 96-1291.
    Argued November 12, 1997
    Decided January 26, 1998

      Kennedy, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 430. Scalia, J., filed a dissenting opinion, post, p. 434.' Thomas, J., filed a dissenting opinion, in which Rehnqtjist, C. J., joined, post, p. 434.

      Barbara G. Haynie argued the cause for petitioner. With her on the briefs were W. Richard House, Jr., and John S. Lawrence, Jr.

      Beth S. Brinkmann argued the cause for the United States et al. urging reversal. With her on the-brief were Acting Solicitor General Dellinger, Deputy Solicitor General Waxman, J. Ray Terry, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler.

      Carter G. Phillips argued the cause for respondent. With him on the brief were Michael G. Thompson, O. H. Storey III, Renee W. Masinter, and Rosemarie Falcone.

       Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Thomas Osborne; and for the National Employment Lawyers Association by Thomas R. Meites.

      Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman, Stephen A Bokat, Robin S. Conrad, Edward H. Comer, J. Bruce Brown, and Edward N. Bomsey; and for the Illinois State Chamber of Commerce by Brian W. Bulger.

   Justice Kennedy

delivered the opinion of the Court.

An employee, as part of a termination agreement, signed a release of all claims against her-employer. In eonsider-ation, she received severance pay in installments. The release, however, did not comply with specific federal statutory requirements for a release of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq. After receiving the last payment, the employee brought suit under the ADEA. The employer claims the employee ratified and validated the nonconforming release by retaining the moneys paid to secure it. The employer also insists the release bars the action unless, as a precondition to filing suit, the employee tenders back the moneys received. We disagree and rule that, as the release did not comply with the statute, it cannot bar the ADEA claim.

I

Petitioner Dolores Oubre worked as a scheduler at a power plant in Killona, Louisiana, run by her employer, respondent Entergy Operations, Inc. In 1994, she received a poor performance rating. Oubre’s supervisor met with her on January 17,1995, and gave her the option of either improving her performance during the coming year or accepting a voluntary arrangement for her severance. She received a packet of information about the severance agreement and had 14 days to consider her options, during which she consulted with attorneys. On January 31, Oubre decided to accept. She signed a release, in which she “agree[d] to waive, settle, release, and discharge any and all claims, demands, damages, actions, or causes of action ... that I may have against En-tergy _” App. 61. In exchange, she received six installment payments over the next four months, totaling $6,258.

The Older Workers poses specific requirements for releases covering ADEA claims. OWBPA, § 201,104 Stat. 983,29 U. S. C. §§ 626(f)(1) (B), (F), (G). In procuring the release, Entergy did not comply with the OWBPA in at least three respects: (1) Entergy did not give Oubre enough time to consider her options. (2) Entergy did not give Oubre seven days after she signed the release to change her mind. And (3) the release made no specific reference to claims under the ADEA.

Oubre filed a charge of age discrimination with the Equal Employment Opportunity Commission, which dismissed her charge on the merits but issued a right-to-sue letter. She filed this suit against Entergy in the United States District Court for the Eastern District of Louisiana, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. Oubre has not offered or tried to return the $6,258 to Entergy, nor is it clear she has the means to do so. Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the moneys she had received. The District Court agreed and entered summary judgment for Entergy. The Court of Appeals affirmed, 112 F. 3d 787 (CA5 1996) (per curiam), and we granted certiorari, 520 U. S. 1185 (1997).

II

The employer rests its case upon general principles of state contract jurisprudence. As the employer recites the rule, contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party. See 1 Restatement (Second) of Contracts § 7, and Comment b (1979); e. g., Ellerin v. Fairfax Sav. Assn., 78 Md. App. 92, 108-109, 552 A. 2d 918, 926-927 (Md. Spec. App.), cert. denied, 316 Md. 210, 557 A. 2d 1336 (1989). The employer maintains, however, that before the innocent party can elect avoidance, she must first tender back any benefits received under the contract. See, e. g., Dreiling v. Home State Life Ins. Co., 213 Kan. 137, 147-148, 515 P. 2d 757, 766-767 (1973). If she fails to do so within a reasonable time after learning of her rights, the employer contends, she ratifies the contract and so makes it binding. 1 Restatement (Second) of Contracts, supra, § 7, Comments d, e; see, e. g., Jobe v. Texas Util. Elec. Co., No. 05-94-01368-CV, 1995 WL 479645, *3 (Tex. App.-Dallas, Aug. 14, 1995) (unpublished). The employer also invokes the doctrine of equitable estoppel. As a rule, equitable estoppel bars a party from shirking the burdens of a voidable transaction for as long as she retains the benefits received under it. See, e. g., Buffum v. Peter Barceloux Co., 289 U. S. 227, 284 (1933) (citing state ease law from Indiana and New York). Applying these principles, the employer claims the employee ratified the ineffective release (or faces estoppel) by retaining all the sums paid in consideration of it. The employer, then, relies not upon the execution of the release but upon a later, distinct ratification of its terms.

These general rules may not be as as asserts. See generally Annot., 76 A. L. R. 344 (1932) (collecting cases supporting and contradicting these rules); Annot., 134 A. L. R. 6 (1941) (same). And in equity, a person suing to rescind a contract, as a rule, is not required to restore the consideration at the very outset of the litigation. See 3 Restatement (Second) of Contracts, supra, § 384, and Comment b; Restatement of Restitution § 65, Comment d (1936); D. Dobbs, Law of Remedies § 4.8, p. 294 (1973). Even if the employer’s statement of the general rule requiring tender back before one files suit were correct, it would be unavailing. The rule cited is based simply on the course of negotiation of the parties and the alleged later ratification. The authorities cited dp not consider the question raised by statutory standards for releases and a statutory declaration making nonconforming releases ineffective. It is the latter question we confront here.

In 1990, Congress amended the ADEA by passing the OWBPA. The OWBPA provides: “An individual may not waive any right or claim under [the ADEA] unless the waiver is knowing and voluntary.... [A] waiver may not be considered knowing and voluntary unless at a minimum” it satisfies certain enumerated requirements, including the three listed above. 29 U. S. C. § 626(f)(1).

The statutory command is clear: An employee “may not waive” an ADEA claim unless the waiver or release satisfies the OWBPA’s requirements. The policy of the OWBPA is likewise clear from its title: It is designed to protect the rights and benefits of older workers. The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee "may not waive” an ADEA claim unless the employer complies with the statute. Courts cannot with ease presume ratification of that which Congress forbids.

The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications. The text of the OWBPA forecloses the employer’s defense, notwithstanding how general contract principles would apply to non-ADEA claims.

The rule proposed by the employer would frustrate the statute’s practical operation as well as its formal command. In many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return. These realities might tempt employers to risk noneomplianee with the OWBPA’s waiver provisions, knowing it will be difficult to repay the moneys and relying on ratification. We ought not to open the door to an evasion of the statute by this device.

Oubre’s cause of action arises under the ADEA, and the release can have no effect on her ADEA claim unless it complies with the OWBPA. In this case, both sides concede the release the employee signed did not comply with the requirements of the OWBPA. Since Oubre’s release did not comply with the OWBPA’s stringent safeguards, it is unenforceable against her insofar as it purports to waive or release her ADEA claim. As a statutory matter, the release cannot bar her ADEA suit, irrespective of the validity of the contract as to other claims.

In further proceedings in this or other cases, courts may need to inquire whether the employer has claims for restitution, recoupment, or setoff against the employee, and these questions may be complex where a release is effective as to some claims but not as to ADEA claims. We need not decide those issues here, however. It suffices to hold that the release cannot bar the ADEA claim because it does not conform to the statute. Nor did the employee’s mere retention of moneys amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. The statute governs the effect of the release on ADEA claims, and the employer cannot invoke the employee’s failure to tender back as a way of excusing its own failure to comply.

We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered!

APPENDIX TO OPINION OP THE COURT

Older Workers Benefit Protection Act, § 201, 104 Stat. 983, 29 U. S. C. § 626(f):

(f) Waiver

(1) An individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless 'at a minimum—

(A) the waiver is part of an agreement between the individual and the employer that is written in a manner ealcu-lated to be understood by such individual, or by the average individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this Act;

(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or

(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to—

(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

(2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual’s representative, alleging age discrimination of a kind prohibited under section 4 or 15 may not be considered knowing and voluntary unless at a minimum—

(A) subparagraphs (A) through (E) of paragraph (1) have been met; and

(B) the individual is given a reasonable period of time within which to consider the settlement agreement.

(3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in sub-paragraph (A), (B), (C), (D), (E), CP), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).

(4) No waiver agreement may affect the Commission’s rights and responsibilities to enforce this Act. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.

Justice Beeyee,

with whom Justice O’Connoe joins,.

concurring.

This ease focuses upon a worker who received a payment from her employer and in return promised not to bring an age-discrimination suit. Her promise failed the procedural tests of validity set forth in the Older Workers Benefit Protection Act (OWBPA), 29 U. S. C. § 626(f)(1). I agree with the majority that, because of this procedural failing, the worker is free to bring her age-discrimination suit without “tendering back” her employer’s payment as a precondition. As a conceptual matter, a “tender back” requirement would imply that the worker had ratified her promise by keeping her employer’s payment. For that reason, it would bar suit, including suit by a worker (without other assets) who had already spent the money he received for the promise. Yet such an act of ratification could embody some of the same procedural failings that led Congress to find the promise not to sue itself invalid. For these reasons, as the majority points out, a tender back precondition requirement would run contrary to Congress’ statutory command. See ante, at 426-427. Cf. 1 Restatement (Second) of Contracts § 85, Comment b (1979) (a promise ratifying a voidable contract “may itself be voidable for the same reason as the original promise, or it may be voidable or unenforceable for some other reason”); D. Dobbs, Law of Remedies 982 (1978) (“[C]our'ts must avoid allowing a recovery that has the effect of substantially enforcing the contract that has been declared unenforceable, since to do so would defeat the policy that led to the ... rule in the first place”).

I write these additional words because I believe it important to specify that the statute need not, and does not, thereby make the worker’s proeedurally invalid promise totally void, i. e., without any legal effect, say, like a contract the terms of which themselves are contrary to public policy. See 1 Restatement (Second) of Contracts § 7, Comment a (1979); 2 id., § 178. Rather, the statute makes the contract that the employer and worker tried to create voidable, like a contract made with an infant, or a contract created through fraud, mistake, or duress, which contract the worker may elect either to avoid or to ratify. See 1 id., § 7, and Comment b.

To determine whether a contract is voidable or void, courts typically ask whether the contract has been made under conditions that would justify giving one of the parties a choice as to validity, making it voidable, e. g., a contract with an infant; or whether enforcement of the contract would violate the law or public policy irrespective of the conditions in which the contract was formed, making it void, e. g., a contract to commit murder. Compare 1 id., § 7, Comment b (voidable), with 2 id., § 178, and Comment d (void). The statute before us reflects concern about the conditions (of knowledge and free choice) surrounding the making of a contract to waive an age-discrimination claim. It does not reflect any relevant concern about enforcing the contract’s substantive terms. Nor does this statute, unlike the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., say that a contract waiving suit and thereby avoiding liability is void. § 55. Rather, as the majority’s opinion makes clear, see ante, at 426-427, the OWBPA prohibits courts from finding ratification in certain circumstances, such as those presented here, namely, a worker’s retention of an employer’s payment for an invalid release. That fact may affect ratification, but it need not make the contract void, rather than voidable.

That the contract is voidable rather than void may prove important. For example, an absolutely void contract, it is said, “is void as to everybody whose rights would be affected by it if valid.” 17 A Am. Jur. 2d, Contracts § 7, p. 31 (1991). Were a former worker’s procedurally invalid promise not to sue absolutely void, might it not become legally possible for an employer to decide to cancel its own reciprocal obligation, say, to pay the worker, or to provide ongoing health benefits — whether or not the worker in question ever intended to bring a lawsuit? It seems most unlikely that Congress, enacting a statute meant to protect workers, would have wanted to create — as a result of an employer’s failure to follow the law — any such legal threat to all workers, whether or not they intend to bring suit. To find the contract voidable, rather than void, would offer legal protection against such threats.

At the same time, treating the contract as voidable could permit an employer to recover his own reciprocal payment (or to avoid his reciprocal promise) where doing so seems most fair, namely, where that recovery would not bar the worker from bringing suit. Once the worker (who has made the proeedurally invalid promise not to sue) brings an age-discrimination suit, he has clearly rejected (avoided) his promise not to sue. As long as theré is no “tender back” precondition, his (invalid) promise will not have barred his suit in conflict with the statute. Once he has sued, however, nothing in the statute prevents his employer from asking for restitution of his reciprocal payment or relief from any ongoing reciprocal obligation. See Restatement of Restitution § 47, Comment b (1936) (“A person who transfers something to another believing that the other thereby comes under a duty to perform the terms of a contract ... is ordinarily entitled to restitution for what he has given if the obligation intended does not arise and if the other does not perform”); Dobbs, supra, at 994 (restitution is often allowed where benefits are conferred under voidable contract). A number of older state cases indicate, for example, that the amount of consideration paid for an invalid release can be deducted from a successful plaintiff’s damages award. See, e. g., St. Louis-San Francisco R. Co. v. Cox, 171 Ark. 103, 113-115, 283 S. W. 31, 35 (1926) (amount paid for invalid release may be taken into consideration in setting remedy); Koshka v. Missouri Pac. R. Co., 114 Kan. 126, 129-130, 217 P. 293, 295 (1923) (the sum paid for an invalid release may be treated as an item of credit against damages); Miller v. Spokane Int'l R. Co., 82 Wash. 170, 177-178, 143 P. 981, 984 (1914) (same); Gilmore v. Western Elec. Co., 42 N. D. 206, 211-212, 172 N. W. 111, 113 (1919).

My point is that the statute’s provisions are consistent with viewing an invalid release as voidable, rather than void. Apparently, five or more Justices take this view of the matter. See post, at 436, n. 1 (Thomas, J., dissenting). As I understand the majority’s opinion, it is also consistent with this view, and I consequently concur in its opinion.

Justice Scalia,

dissenting.

I agree with Justice Thomas that the Older Workers Benefit Protection Act (OWBPA), 29 U. S. G. § 626(f), does not abrogate the common-law doctrines of “tender back” and ratification. Because no “tender back” was made here, I would affirm the judgment.

I do not consider ratification a second basis for affirmance, since ratification cannot occur until the impediment to the conclusion of the agreement is eliminated. Thus, an infant cannot ratify his voidable contracts until he reaches majority, and a party who has contracted under duress cannot ratify until the duress is removed. See 1 E. Farnsworth, Contracts § 4.4, p. 381, § 4.19, p. 443 (1990). Of course for some contractual impediments, discovery itself is the cure. See 12 W. Jaeger, Williston on Contracts § 1527, p. 626 (3d ed. 1970) (ratification by a defrauded party may occur “after discovery of the fraud”); 2 Farnsworth, supra, § 9.3, at 520 (ratification by party entitled to avoid for mistake may occur after “that party is or ought to be aware of the facts”). The impediment here is not of that sort. OWBPA provides that “[a]n individual may not waive any right or claim under th[e] [Age Discrimination in Employment Act of 1967] unless the waiver is knowing and voluntary,” 29 U. S. C. § 626(f)(1), and says that a waiver “may not be considered knowing and voluntary" unless it satisfies the requirements not complied with here, ibid. That a party later learns that those requirements were not complied with no more enables ratification of the waiver than does such knowledge at the time of contracting render the waiver effective ab initio.

Justice Thomas,

with whom The ChieF Justice joins,

dissenting.

The Older Workers Benefit Protection Act (OWBPA), 29 U. S. C. § 626(f), imposes certain minimum requirements that waivers of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq., must meet in order to be considered “knowing and voluntary.” The Court of Appeals held that petitioner had ratified a release of ADEA claims that did not comply with the OWBPA by retaining the benefits she had received in exchange for the release, even after she had become aware of the defect and had decided to sue respondent. The majority does not suggest that the Court of Appeals was incorrect in concluding that petitioner’s conduct was sufficient to constitute ratification of the release. Instead, without so much as acknowledging the long-established principle that a statute “must ‘speak directly to the question addressed by the common law” in order to abrogate it, United States v. Texas, 507 U. S. 529, 584 (1998) (quoting Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978)), the Court holds that the OWBPA abrogates both the common-law doctrine of ratification and the doctrine that a party must “tender back” consideration received under a release of legal claims before bringing suit. Because the OWBPA does not address either of these common-law doctrines at all, much less with the clarity necessary to abrogate them, I respectfully dissent.

It has long been established that “ ‘[statutes which invade the common law... are to be read with a presumption favoring the retention of long-established aiid familiar principles, except when a statutory purpose to the contrary is evident.’ ” United States v. Texas, supra, at 534 (quoting Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952)). Congress is understood to legislate against a background of common-law principles, Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991), and thus “does not write upon a clean slate,” United States v. Texas, supra, at 534. As a result, common-law doctrines “‘ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose.’” Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U. S. 30, 35-36 (1983) (quoting Fairfax’s Devisee v. Hunter’s Lessee, 7 Crunch 603, 623 (1813)).

The only clear and explicit purpose of the OWBPA is to define "knowing and voluntary” in the context of ADEA waivers. Prior to the statute’s enactment, the Courts of Appeals had disagreed about the proper standard for determining whether such waivers were knowing and voluntary. Several courts had adopted a “totality of the circumstances” test as a matter of federal waiver law, see, e. g., Cirillo v. Arco Chemical Co., 862 F. 2d 448, 451 (CA3 1988); Bormann v. AT&T Communications, Inc., 875 F. 2d 399, 403 (CA2), cert. denied, 493 U. S. 924 (1989); O’Hare v. Global Natural Resources, Inc., 898 F. 2d 1015, 1017 (CA5 1990), while others had relied solely on common-law contract principles, see Runyan v. National Cash Register Corp., 787 F. 2d 1039, 1044, n. 10, 1045 (CA6) (en banc), cert. denied, 479 U. S. 850 (1986); Lancaster v. Buerkle Buick Honda Co., 809 F. 2d 539, 541 (CA8), cert. denied, 482 U.S. 928 (1987). In enacting the OWBPA, Congress adopted neither approach, instead setting certain minimum requirements that every release of ADEA rights and claims must meet in order to be deemed knowing and voluntary. I therefore agree with the Court that the OWBPA abrogates the common-law definition of a “knowing and voluntary” waiver where ADEA claims are involved.

From this rather unremarkable proposition, however, the Court leaps to the conclusion that the OWBPA supplants the common-law doctrines of ratification and tender back. The doctrine of ratification (also known in contract law as affirmation) provides that a party, after discovering a defect in the original release, can make binding that otherwise voidable release either explicitly or by failing timely to return the consideration received. See 1 Restatement (Second) of Contracts § 7, Comments d, e (1979); 1 E. Farnsworth, Contracts §§4.15, 4.19 (1990). The tender back doctrine requires, as a condition precedent to suit, that a plaintiff return the consideration received in exchange for a release, on the theory that it is inconsistent to bring suit against the defendant while at the same time retaining the consideration received in exchange for a promise not to bring such a suit. See Buffum v. Peter Barceloux Co., 289 U. S. 227, 234 (1933) (citing state eases).

The OWBPA simply does not speak to ratification. It is certainly not the case — notwithstanding the Court’s statement that the OWBPA “governs the effect under federal law of waivers or releases' on ADEA claims,” ante, at 427 — that ratification can never apply in the context of ADEA releases. There is no reason to think that releases voidable on non-statutory grounds such as fraud, duress, or mistake cannot be ratified: The OWBPA merely imposes requirements for knowing and voluntary waivers and is silent regarding fraud, duress, and mistake. Further, the statute makes no mention of whether there can ever be a valid ratification in the more specific instance, presented by this ease, of a release of ADEA claims that fails to satisfy the statute’s requirements. Instead, the statute merely establishes prerequisites that must be met for a release to be considered knowing and voluntary; the imposition of these statutory requirements says absolutely nothing about whether a release that fails to meet these prerequisites can ever be ratified.

Not only does the text of the OWBPA make no mention of ratification, but it also cannot be said that the doctrine is inconsistent with the statute. The majority appears to reason that ratification cannot apply in the ADEA context because releases would be given legal effect where they should have none. As the Court explains, “the release can have no effect on [the employee’s] ADEA claim unless it complies with the OWBPA.” Ibid. Or, put another way, because petitioner’s release did not comply with the statute, “it is unenforceable against her insofar as it purports to waive or release her ADEA claim.” Ante, at 428.

The Court’s concerns, however, appear directed at ratification itself, rather than at its application in the ADEA context. Ratification necessarily applies where a release is unenforceable against one party at its adoption because of some deficiency; the whole point of ratification is to give legal effect to an otherwise voidable release. By defining the requirements that must be met for a release of ADEA claims to be considered knowing and voluntary, the OWBPA merely establishes one of the ways in which a release may be unenforceable at its adoption. The OWBPA does not suggest any reason why a noncomplying release cannot be made binding, despite the original defect, in the same manner as any other voidable release.

Nor does ratification conflict with the purpose of the OWBPA. Ratification occurs only when the employee realizes that the release does not comply with the OWBPA and nevertheless assents to be bound. See 12 W. Jaeger, Williston on Contracts § 1527 (3d ed. 1970) (ratification may occur only after defect is discovered); 3 Restatement (Second) of Contracts § 381 (same). This is surely consistent with the statutory purpose of ensuring that waivers of ADEA claims are knowing and voluntary.

The question remains whether the OWBPA imposes requirements that a ratification must meet. Ratification of a voidable release, like the release itself, must be knowing and voluntary. Otherwise, it too is voidable by the innocent party. See 1 id., § 85, Comment b. Although the Court does not expressly address this question, it appears that the Court’s holding requires, at minimum, that the statutory requirements apply in the ratification context.

The OWBPA does not, however, clearly displace the common-law definition of “knowing and voluntary” in the ratification context. The statute itself states that it applies to waivers and is absolutely silent regarding ratification or affirmation. Further, several of the statutory requirements cannot be translated easily into the ratification context. The requirements that an employee be given a period of at least 21 days to consider the agreement, 29 U. S. C. § 626(f )(l)(F)(i), and that he have a 7-day period in which to revoke the agreement, § 626(f)(1)(G), naturally apply in the context of the original release, but seem superfluous when applied to ratification. For example, when an employee has implicitly ratified the original release by retaining the consideration for several months after discovering its defects, a 21-day waiting period to consider the agreement and a 7-day revocation period have no place. An employee thus may ratify a release that fails to comply with the OWBPA.

For many of the same reasons that the OWBPA does not abrogate the doctrine of ratification, it also does not abrogate the tender back requirement. Certainly the statute does not supplant the tender back requirement in its entirety. Where a release complies with the statute but is voidable on other grounds (such as fraud), the OWBPA does not relieve an employee of the obligation to return the consideration received before suing his employer; the OWBPA does not even arguably address such a situation. And in the more specific context of a release that fails to comply with the OWBPA, the statute simply says nothing about whether there can ever be an obligation to tender back the consideration before filing suit.

Nor is the tender back requirement inconsistent with the OWBPA. Although it does create an additional obligation that would not exist but for the. noncomplying release, the doctrine merely puts the employee to a choice between avoiding the release and retaining the benefit of his bargain. After all, this doctrine does not preclude suit but merely acts as a condition precedent to it; the employee need only return the consideration before the statute of limitations period has run. And despite the Court’s concern that “[i]n many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return,” ante, at 427; see also ante, at 431 (Breyer, J., concurring), courts have interpreted the tender back doctrine flexibly, such that immediate tender is not always required. See D. Dobbs, Law of Remedies § 9.4, p. 622 (1973); Fleming v. United States Postal Service AMF O’Hare, 27 F. 3d 259, 260 (CA7 1994). If anything, the Court’s holding creates a windfall for an employee who may now retain the consideration received from his employer while at the same time filing suit.

Finally, it is clear that the statutory requirements have no application to the tender back requirement. The tender back doctrine operates not to make the voidable release binding, as does ratification, but rather precludes a party from simultaneously retaining the benefits of the release and suing to vindicate released claims. See supra, at 436-437. That is, the requirement to tender back is simply a condition precedent to suit; it has nothing to do with whether a waiver was knowing and voluntary. Nothing in the statute even arguably implies that the statutory requirements must be met before this obligation arises.

In sum, the OWBPA does not clearly and explicitly abrogate the doctrines of ratification and tender back. Congress, of course, is free to do so. But until it does, these common-law doctrines should apply to releases of ADEA claims, just as they do to other releases. Because the Court of Appeals determined that petitioner had indeed ratified her release, and there is no reason to think that this determination was in error, I would affirm. I therefore respectfully dissent.

       For the reasons noted by Justice Breyer, see ante, at 431-432, I think it cannot be doubted that releases that fail to meet the OWBPA’s requirements are merely voidable, rather than void.

       Although the Court, relying on the statute’s title, defines the OWBPA’s purpose broadly as “proteet[ing] the rights and benefits of older workers,” ante, at 427, the statute itself suggests only the more specific purpose of preventing unknowing or involuntary waivers of ADEA rights and claims.

       The statements of the majority in this regard, like much of the majority opinion generally, imply that noncomplying releases are void as against public policy, rather than voidable. That certainly is not the casa See n. 1, supra. And Justice Breyer does not explain why his alternative— permitting the employer to seek restitution — survives the OWBPA while the tender back requirement does not. See ante, at 433.


author: Per Curiam.

text:
    NEWSWEEK, INC. v. FLORIDA DEPARTMENT OF REVENUE et al.
    No. 97-663.
    Decided February 23, 1998
   Per Curiam.

Effective January 1, 1988, Florida exempted newspapers, but not magazines, from its sales tax. See Fla. Stat. §§ 212.08(7)(w), 212.05(1)(i) (Supp. 1988). In 1990, the Florida Supreme Court found this classification invalid under the First Amendment of the Constitution of the United States. See Department of Revenue v. Magazine Publishers of America, Inc., 565 So. 2d 1304 (1990), vacated and remanded, Miami Herald Publishing Co. v. Dept. of Revenue, 499 U. S. 972 (1991), reaff’d, 604 So. 2d 459 (1992). In the wake of this ruling, Newsweek, a magazine, filed a claim for a refund of sales taxes it had paid between 1988 and 1990. See Fla. Stat. § 215.26(1) (Supp. 1998) (“The Comptroller of the state may refund ... any moneys paid into the State Treasury”).

When the Department of Revenue denied the refund, Newsweek filed suit, alleging the State’s failure to accord it retroactive relief violated its due process rights under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990). The Florida trial court granted summary judgment against Newsweek, and the District Court of Appeal affirmed. Although acknowledging McKesson’s requirement of “meaningful backward-looking relief” when a taxpayer is forced to pay a tax before having an opportunity to establish its uneonstitutionality, the District Court of Appeal held: “McKesson is distinguishable because that holding was expressly predicated upon the fact that the taxpayer had no meaningful predeprivation remedy.” 689 So. 2d 361, 363 (1997). The court interpreted Florida law to permit prepayment tax challenges by filing an action and paying the contested amount into the court registry, posting a bond, or obtaining a court order approving an alternative arrangement. See id., at 363-364 (citing Fla. Stat. § 72.011 (1987)). The court concluded Newsweek was afforded due process because it could have pursued this prepayment remedy without suffering onerous penalties. See 689 So. 2d, at 364.

The District Court of Appeal’s decision failed to consider our decision in Reich v. Collins, 513 U. S. 106 (1994). There, the Georgia Supreme Court had rejected a taxpayer’s refund claim filed pursuant to a general refund statute, dismissing any due process concerns because a predeprivation remedy was available. See id., at 110. While assuming the constitutional adequacy of Georgia’s predeprivation procedures, we nonetheless reversed because “no reasonable taxpayer would have thought that [the predeprivation procedures] represented, in light of the apparent applicability of the refund statute, the exclusive remedy for unlawful taxes.” Id., at 111 (emphasis deleted). Until the Georgia Supreme Court’s ruling, the taxpayer had no way of knowing from either the statutory language of case law that he could not pursue a postpayment refund and was relegated to a predep-rivation remedy. See id., at 111-112. We emphasized a State “has the flexibility to maintain an exclusively predepri-vation remedial scheme, so long as that scheme is ‘clear and certain.’ ” Id., at 110-111. But a State may not “bait and switch” by “holding] out what plainly appears to be a ‘clear and certain’ postdeprivation remedy and then declare, only after the disputed taxes have been paid, that no such remedy exists.” Id., at 111, 108.

Under Florida law, there was a longstanding practice of permitting taxpayers to seek refunds under § 215.26 for taxes paid under an unconstitutional statute. See, e.g., State ex rel. Hardaway Contracting Co. v. Lee, 155 Fla. 724, 21 So. 2d 211 (1945). At Florida’s urging, federal courts have dismissed taxpayer challenges, including constitutional challenges, because §215.26 appeared to provide an adequate postpayment remedy for refunds. See Tax Injunction Act, 28 U. S. C. § 1341 (“The district courts shall not enjoin . . . any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State”); see, e. g., Osceola v. Florida Dept. of Revenue, 893 F. 2d 1231, 1233 (CA11 1990); Rendon v. State of Fla., 930 F. Supp. 601 (SD Fla. 1996). This Court, too, has interpreted Florida law to provide a postpayment remedy. See McKesson, supra, at 24, n. 4 (“It appears . .. Florida law does not require a taxpayer to pay under protest in order to preserve the right to challenge a remittance in a postpayment refund action”). The State does not dispute this settled understanding. The effect of the District Court of Appeal’s decision below, however, was to cut off Newsweek’s recourse to § 215.26. While Florida may be free to require taxpayers to litigate first and pay later, due process prevents it from applying this requirement to taxpayers, like Newsweek, who reasonably relied on the apparent availability of a postpayment refund when paying the tax.

Newsweek is entitled to a clear and certain remedy and thus it can use the refund procedures to adjudicate the merits of its claim. We grant the petition for a writ of certio-rari, vacate the judgment, and remand the case for proceedings not inconsistent with this opinion.

It is so ordered.


author: Per Curiam. Justice Stevens,

text:
    ARTEAGA v. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 97-6749.
    Decided February 23, 1998

       Together with Arteaga v. Wilson, Governor of California, et al., also on motion for leave to proceed informa pauperis.

   Per Curiam.

Pro se petitioner Lorenzo Arteaga seeks leave to proceed informa pauperis to file a petition for a writ of certiorari to the Ninth Circuit. The Ninth Circuit affirmed the District Court’s dismissal with prejudice of petitioner’s complaint for failure to amend his complaints pursuant to the District Court’s instructions.

We deny petitioner leave to proceed in forma pauperis. He is allowed, until March 16,1998, within which to pay the docketing fee required by Rule 38 and to submit his petition in compliance with Rule 38.1. For the reasons discussed below, we also direct the Clerk of the Court not to accept any further petitions for certiorari in noneriminal matters from petitioner unless he first pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1.

Petitioner has filed 20 petitions with this Court, 16 in the past two Terms. All have been denied without recorded dissent. In 1997, we invoked Rule 39.8 to deny petitioner in forma pauperis status. Arteaga v. California, post, p. 804. Petitioner nevertheless has filed another frivolous petition with this Court. In his petition and supplemental petition, Arteaga appears to assert that he is an innocent person falsely imprisoned and to allege numerous constitutional violations and conspiracies among prison, court, and government officials. He does not address the reasons for the . District Court’s dismissal.

Accordingly, we enter this order barring prospective in forma pauperis filings by petitioner in noncriminal cases for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

It is so ordered.

Justice Stevens,

dissenting.

For reasons previously stated, see Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (Stevens, J., dissenting), and cases cited, I respectfully dissent.