text:
    No. 97-1210.
    Blue Cross & Blue Shield of Michigan v. BPS Clinical Laboratories et al.
   Ct. App. Mich. Motion of Michigan Manufacturers Association for leave to file a brief as amicus curiae granted. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 96-1279.
    No. 96-9379.
    No. 96-9536.
    No. 97-773.
    No. 97-825.
    No. 97-5859.
    No. 97-6087.
    No. 97-6121.
    No. 97-6218.
    No. 97-6352.
    No. 97-6463.
    No. 97-6479.
    No. 97-6516.
    No. 97-6531.
    No. 97-6662.
    No. 97-6899.
    No. 97-6962.
    No. 97-7093.
    No. 97-7154.
    Rogers v. United States, La Grange v. Longoria, Janneh v. Runyon, Postmaster General, DiRussa v. Dean Witter Reynolds, Inc., et al., Millner v. ITT Aerospace/Communications Division of ITT Corp., Inc., Williams v. United States, Fore v. Denny’s Inc. et al., Crocker v. Robinson, Western Regional Director, Pennsylvania Board of Probation and Parole, et al., Wilcher v. Mississippi (two judgments), Maloney v. Workers’ Compensation Appeals Board of California et al., Johnson v. California et al., Hollowell v. Johnson, Tavakoli-Nouri v. Mitchell, Bergmann v. Candler County Department of Family and Children Services et al., Turnmire v. Bernhardt, Warden, Jones v. The Pep Boys, Manny, Moe, and Jack of California, Martin v. Angelone, Director, Virginia Department of Corrections, Edmunson v. Savko et al., In re Langworthy,
   ante, p. 252;

ante, p. 845;

ante, p. 854;

ante, p. 1049;

ante, p. 1050;

ante, p. 1053;

ante, p. 1000;

ante, p. 972;

ante, p. 1053;

ante, p. 1054;

ante, p. 1054;

ante, p. 1055;

ante, p. 1055;

ante, p. 1056;

ante, p. 1059;

ante, p. 1094;

ante, p. 1065;

ante, p. 1096; and

ante, p. 1088. Petitions for rehearing denied.


author: Justice Scalía Justice Souter, Justice Ginsburg, Justice Stevens,

text:
    SPENCER v. KEMNA, SUPERINTENDENT, WESTERN MISSOURI CORRECTIONAL CENTER, et al.
    No. 96-7171.
    Argued November 12, 1997
    Decided March 3, 1998

      Scaua, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which O’Connor, Ginsburg, and Breyer, JJ., joined, post, p. 18. Ginsburg, J., filed a concurring opinion, post, p. 21. Stevens, J., filed a dissenting opinion, post, p. 22.

      John William Simon, by appointment of the Court, 520 U. S. 1227, argued the cause and filed briefs for petitioner.

      James R. Layton, Chief Deputy Attorney .General of Missouri, argued the cause for respondents. With him on the brief were Jeremiah W. (Jay) Nixon, Attorney General, pro

      se, and Stephen D. Hawke, Stacy L. Anderson, and Michael J. Spillane, Assistant Attorneys General

      A brief of amici curiae was filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Ronald A Bass, Senior Assistant Attorney General, and Morris Beatus and Peggy S. Ruffra, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Grant Woods of Arizona, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Jeffrey A Modisett of Indiana, Thomas J. Miller of Iowa, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Heidi Heitkamp of North Dakota, W. A Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, and Jan Graham of Utah.

   Justice Scalía

delivered the opinion of the Court.

In his petition for a writ of habeas corpus, Randy G. Spencer seeks to invalidate a September 24,1992, order revoking his parole. Because Spencer has completed the entire term of imprisonment underlying the parole revocation, we must decide whether his petition is moot.

1 — !

On October 17, 1990, petitioner began serving concurrent 3-year sentences in Missouri on convictions of felony stealing and burglary. On April 16,1992, he was released on parole, but on September 24,1992, the Missouri Board of Probation and Parole, after hearing, issued an Order of Revocation revolting the parole. The order concluded that petitioner had violated three of the conditions, set forth in Missouri’s Code of Regulations, Title 14, §80-3.010 (1992), that a Missouri inmate must comply with in order to remain on parole:

“NOW, THEREFORE, after careful consideration of evidence presented, said charges which warrant revocation are sustained, to wit:
“#1-LAWS: I will obey all federal and state laws, municipal and county ordinances. I will report all arrests to my Probation and Parole Officer within 48 hours. “#6~DRUGS: I will not have in my possession or use any controlled substance except as prescribed for me by a licensed medical practitioner.
“#7-WEAPONS: I will, if my probation or parole is based on a misdemeanor involving firearms or explosives, or any felony charge, not own, possess, purchase, receive, sell or transport any firearms, ammunition or explosive device or any dangerous weapon as defined by federal, state or municipal laws or ordinances.” App. 55-56.

The specific conduct that violated these conditions was described only by citation of the parole violation report that the board used in making its determination: “Evidence relied upon for violation is from the Initial Violation Report dated 7-27-92.” Id., at 56.

That report, prepared by State Probation and Parole Officer Jonathan Tintinger, summarized a June 3, 1992, police report prepared by the Kansas City, Missouri Police Department, according to which a woman had alleged that petitioner, after smoking crack cocaine with her at a local crack house and later at his own home, pressed a screwdriver against her side and raped her. According to the Kansas City report, petitioner had admitted smoking crack cocaine with the woman, but claimed that the sexual intercourse between them had been consensual. Officer Tintinger’s report then described his own interview with petitioner, at which petitioner again admitted smoking crack cocaine with the woman, denied that he had pressed a screwdriver to her side, and did not respond to the allegation of rape. Finally, after noting that “Spencer [was] a registered sex offender, having been given a five-year prison sentence for Sodomy in 1983,” id., at 75, Officer Tintinger’s report tentatively recommended that petitioner’s parole be continued, but that he be placed in a drug treatment center. The report withheld making “an ultimate recommendation based on the alleged [rape and dangerous weapon] violations” until the prosecuting attorney’s office had a chance to dispose of those charges. Id., at 76. “In the event formal charges are ultimately filed,” it said, “a separate recommendation will be forthcoming.” Ibid. Petitioner was never charged, but a September 14, 1992, followup report prepared by Institutional Parole Officer Peggy McClure concluded that “there [did] appear to be significant evidence that Spencer ha[d] violated the conditions of his parole as stated,” and recommended that petitioner’s parole be revoked. Id., at 64. Officer McClure’s report is not mentioned in the Order of Revocation.

On being returned to prison, petitioner began his efforts to invalidate the Order of Revocation. He first sought relief in the Missouri courts, but was rejected by the Circuit Court of De Kalb County, the Missouri Court of Appeals, and, finally, the Missouri Supreme Court. Then, on April 1,1993, just over six months before the expiration of his 3-year sentence, petitioner filed a petition for a writ of habeas corpus, see 28 U. S. C. §2254, in the United States District Court for the Western District of Missouri, alleging that he had not received due process in the parole revocation proceedings. Over petitioner’s objections, the District Court granted the State two requested extensions of time to respond to the petition, deferring the deadline from June 2,1993, until July 7, 1993. On July 14, 1993, after receiving the State’s response, petitioner filed a lengthy “Motion and Request for Final Disposition of this Matter,” in which he requested that the District Court expedite decision on his ease in order to prevent his claim from becoming moot. Before the District Court responded to this motion, however, on August 7,1993, petitioner was re-released on parole, and, two months after that, on October 16, 1993, the term of his imprisonment expired. On February 3,1994, the District Court “noted” petitioner’s July motion, stating that “[t]he resolution of this ease will not be delayed beyond the requirements of this Court’s docket.” App. 127. Then, on August 23,1995, the District Court dismissed petitioner’s habeas petition. “Because,” it said, “the sentences at issue here have expired, petitioner is no longer ‘in custody within the meaning of 28 U. S. C. § 2254(a), and his claim for habeas corpus relief is moot.” Id., at 130.

The United States Court of Appeals for the Eighth Circuit affirmed the District Court’s judgment, concluding that, under our decision in Lane v. Williams, 455 U. S. 624, 632 (1982), petitioner’s claim had become moot because he suffered no “collateral consequences” of the revocation order. 91 F. 3d 1114 (1996). (It acknowledged that this interpretation of Lane did not accord with that of the Second and Ninth Circuits in United States v. Parker, 952 F. 2d 31 (CA2 1991), and Robbins v. Christianson, 904 P. 2d 492 (CA 91990).) We granted certiorari. 520 U. S. 1165 (1997).

II

The District Court’s conclusion that Spencer’s release from prison caused his petition to be moot because it no longer satisfied the “in custody” requirement of the habeas statute was in error. Spencer was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the “in custody” provision of 28 U. S. C. § 2254 requires. See Carafas v. LaVallee, 391 U. S. 234, 238 (1968); Maleng v. Cook, 490 U. S. 488, 490-491 (1989) (per curiam). The more substantial question, however, is whether petitioner’s subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution. “This case-or-eontroversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v. Continental Bank Corp., 494 U. S. 472, 477-478 (1990). See also Preiser v. Newkirk, 422 U. S. 395, 401 (1975). This means that, throughout the litigation, the plaintiff “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis, supra, at 477.

An incarcerated convict’s (or a parolee’s) challenge to the validity of his conviction always satisfies the case-or-eontroversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Once the convict’s sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole — some “collateral consequence” of the conviction — must exist if the suit is to be maintained. See, e. g., Carafas, supra, at 237-238. In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur). See Sibron v. New York, 392 U. S. 40, 55-56 (1968).

The present petitioner, however, does not attack his convictions for felony stealing and burglary, which he concedes were lawful; he asserts only the wrongful termination of his parole status. The reinearceration that he incurred as a result of that action is now over, and cannot be undone. Subsistence of the suit requires, therefore, that continuing “collateral consequences” of the parole revocation be either proved or presumed. And the first question we confront is whether the presumption of collateral consequences which is applied to criminal convictions will be extended as well to revocations of parole. To answer that question, it is helpful to review the origins of and basis for the presumption.

Originally, we required collateral consequences of conviction to be specifically identified, and we accepted as sufficient to satisfy the case-or-controversy requirement only concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses). Thus, in St. Pierre v. United States, 319 U. S. 41 (1943) (per curiam), one of the first eases to recognize collateral consequences of conviction as a basis for avoiding mootness, we refused to allow St. Pierre’s challenge to a contempt citation after he had completed his 5-month sentence, because “petitioner [has not] shown that under either state or federal law further penalties or disabilities can be imposed on him as a result of the judgment which has now been satisfied,” id., at 43. We rejected St. Pierre’s argument that the possibility that “the judgment [could] impair his credibility as [a] witness in any future legal proceeding” was such a penalty or disability, because “the moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.” Ibid. Similarly, in Carafas v. LaVallee, we permitted an individual to continue his challenge to a criminal conviction only after identifying specific, concrete collateral consequences that attached to the conviction as a matter of law:

“It is clear that petitioner’s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror.” 391 U. S., at 237 (footnotes and citation omitted).

See also Fiswick v. United States, 329 U. S. 211, 221-223 (1946) (conviction rendered petitioner liable to deportation and denial of naturalization, and ineligible to serve on a jury, vote, or hold office); United States v. Morgan, 346 U. S. 502 (1954) (conviction had been used to increase petitioner’s current sentence under state recidivist law); Parker v. Ellis, 362 U. S. 574, 576 (1960) (Harlan, J., concurring) (since petitioner’s other, unchallenged convictions took away the same civil rights as the conviction under challenge, the challenge was moot); Ginsberg v. New York, 390 U. S. 629, 633, n. 2 (1968) (conviction rendered petitioner liable to revocation of his license to operate luncheonette business). Cf. Tannenbaum v. New York, 388 U. S. 439 (1967) (per curiam); Jacobs v. New York, 388 U. S. 431 (1967) (per curiam).

The gateway to abandonment of this fastidious approach to collateral consequences was Pollard v. United States, 352 U. S. 354 (1957). There, in allowing a convict who had already served his time to challenge the length of his sentence, we said, almost offhandedly, that “[t]he possibility of consequences collateral to the imposition of sentence [was] sufficiently substantial to justify our dealing with the merits,” id., at 358 — citing for that possibility an earlier ease involving consequences for an alien (which there is no reason to believe Pollard was), see Pino v. Landon, 349 U. S. 901 (1955). In Sibron v. New York, we relied upon this opinion to support the conclusion that our jurisprudence had “abandoned all inquiry into the actual existence of collateral consequences and in effect presumed that they existed.” 392 U. S., at 55 (citing Pollard, supra). Thereafter, and in summary fashion, we proceeded to accept the most generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to conviction. For example, in Evitts v. Lucey, 469 U. S. 387 (1985), we held that respondent’s habeas challenge had not become moot despite the expiration of his sentence and despite the fact that “his civil rights, including suffrage and the right to hold public office, [had been] restored,” id., at 391, n. 4. Since he had not been pardoned, we said, “some collateral consequences of his conviction remain, including the possibility that the conviction would be used to impeach testimony he might give in a future proceeding and the possibility that it would be used to subject him to persistent felony offender prosecution if he should go to trial on any other felony charges in the future.” Ibid. See also Benton v. Maryland, 395 U. S. 784, 790-791 (1969); Pennsylvania v. Mimms, 434 U. S. 106, 108, n. 3 (1977) (per curiam); Minnesota v. Dickerson, 508 U. S. 366 (1993).

There are several relevant observations to be made regarding these developments: First, it must be acknowledged that the practice of presuming collateral consequences (or of accepting the remote possibility of collateral consequences as adequate to satisfy Article III) sits uncomfortably beside the “long-settled principle that standing cannot be ‘inferred argumentatively from averments in the pleadings,’ but rather ‘must affirmatively appear in the record,’ ” and that “it is the burden of the ‘party who seeks the exercise of jurisdiction in his favor,’ ‘clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.’” FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (citations omitted). The practice of presuming collateral consequences developed during an era in which it was thought that the only function of the constitutional requirement of' standing was “to assure that concrete adverseness which sharpens the presentation of issues,” Baker v. Carr, 369 U. S. 186, 204 (1962). Sibron appears in the same volume of the United States Reports as Flast v. Cohen, 392 U. S. 83 (1968), which said:

“The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Id., at 100-101.

See Benton v. Maryland, supra, at 790-791 (“Although this possibility [of collateral consequences] may well be a remote one, it is enough to give this case an adversary east and make it justiciable”). That parsimonious view of the function of Article III standing has since yielded to the acknowledgment that the constitutional requirement is a “means of ‘defin[ing] the role assigned to the judiciary in a tripartite allocation of power,’” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474 (1982), and “a part of the basic charter... providing] for the interaction between [the federal] government and the governments of the several States,” id., at 476. See also Lujan v. Defenders of Wildlife, 504 U. S. 555, 559-560 (1992). And finally, of particular relevance to the question whether the practice of presuming collateral consequences should be extended to challenges of parole termination: In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality. As we said in Sibron, it is an “obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.” 392 U. S., at 55. The same cannot be said of parole revocation.

For these reasons, perhaps, we have hitherto refused to extend our presumption of collateral consequences (or our willingness to accept hypothetical consequences) to the area of parole revocation. In Lane v. Williams, 455 U. S. 624 (1982), we rejected the contention of convicted felons who had completed their sentences that their challenges to their sentences of three years’ mandatory parole at the conclusion of their fixed terms of incarceration (which parole they had violated) were not moot because the revocations of parole could be used to their detriment in future parole proceedings should they ever be convicted of other crimes. We said:

“The doctrine of Carafas and Sibron is not applicable in this case. No civil disabilities such as those present in Carafas result from a finding that an individual has violated his parole.” Id., at 632.
“[Carafas] concerned existing civil disabilities; as a result of the petitioner’s conviction, he was presently barred from holding certain offices, voting in state elections, and serving as a juror. This case involves no such disability.” Id., at 632-633, n. 13.

It was not enough that the parole violations found by the revocation decision would enable the parole board to deny respondents parole in the future, see id., at 639-640 (Marshall, J., dissenting) (quoting Illinois rules governing denial of parole). For such violations “[did] not render an individual ineligible for parole under Illinois law[,] [but were] simply one factor, among many, that may be considered by the parole authority-” Id., at 633, n. 13. And, in any event, “[t]he parole violations that remain a part of respondents’ records cannot affect a subsequent parole determination unless respondents again violate state law, are returned to prison, and become eligible for parolé. Respondents themselves are able — and indeed required by law — to prevent such a possibility from occurring.” Ibid. In addition, we rejected as collateral consequences sufficient to keep the controversy alive the possibility that the parole revocations would affect the individuals’ “employment prospects, or the sentence imposed [upon them] in a future criminal proceeding.” Id., at 632. These “nonstatutory consequences” were dependent upon “[t]he discretionary decisions ... made by an employer or a sentencing judge,” which are “not governed by the mere presence or absence of a recorded violation of parole,” but can “take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation.” Id., at 632-633.

We adhere to the principles announced in Lane, and decline to presume that collateral consequences adequate to meet Article Ill’s injury-in-fact requirement resulted from petitioner’s parole revocation. The question remains, then, whether petitioner demonstrated such consequences.

III

Petitioner asserts four concrete injuries-m-fact attributable to his parole revocation. First, he claims that the revocation could be used to his detriment in a future parole proceeding. This possibility is no longer contingent on petitioner’s again violating the law; he has already done so, and is currently serving a 7-year term of imprisonment. But it is, nonetheless, still a possibility rather than a certainty or even a probability. Under Missouri law, as under the Illinois law addressed in Lane, a prior parole revocation “[does] not render an individual ineligible for parole[,] [but is] simply one factor, among many, that may be considered by the parole authority in determining whether there is a substantial risk that the parole candidate will not conform to reasonable conditions of parole.” 455 U. S., at 633, n. 13. Under Missouri law, “[w]hen in its opinion there is reasonable probability that an offender ... can be released without detriment to the community or himself, the board may in its discretion release or parole such person.” Mo. Rev. Stat. §217.690 (1996). The Missouri Supreme Court has said that this statute “giv[es] the Board ‘almost unlimited discretion’ in whether to grant parole release.” Shaw v. Missouri Board of Probation and Parole, 937 S. W. 2d 771, 772 (1997).

Petitioner’s second contention is that the Order of Revocation could be used to increase his sentence in a future sentencing proceeding. A similar claim was likewise considered and rejected in Lane, because it was contingent upon respondents’ violating the law, getting caught, and being convicted. “Respondents themselves are able — and indeed required by law — to prevent such a possibility from occurring.” Lane, supra, at 633, n. 13. We of course have rejected analogous claims to Article III standing in other contexts.

“[W]e are . . . unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction.” O’Shea v. Littleton, 414 U. S. 488, 497 (1974).

See also Los Angeles v. Lyons, 461 U. S. 95, 102-103 (1983).

For similar reasons, we reject petitioner’s third and fourth contentions, that the parole revocation (and, specifically, the “finding of a parole violation for forcible rape and armed criminal action,” see Brief for Petitioner 34) could be used to impeach him should he appear as a witness or litigant in a future criminal or civil proceeding; or could be used against him directly, pursuant to Federal Rule of Evidence 405 (or Missouri’s state-law equivalent, see Durbin v. Cassalo, 321 S. W. 2d 23, 26 (Mo. App. 1959)) or Federal Rule of Evidence 413, should he appear as a defendant in a criminal proceeding. It is purely a matter of speculation whether such an appearance will ever occur. See O’Shea, supra, at 496-497. Moreover, as to the possibility that petitioner (or a witness appearing on his behalf) would be impeached with the parole revocation, it is far from certain that a prosecutor or examining counsel would decide to use the parole revocation (a “discretionary decision” similar to those of the sentencing judge and employer discussed in Lane, supra, at 632-633); and, if so, whether the presiding judge would admit it, particularly in light of the far more reliable evidence of two past criminal convictions that would achieve the same purpose of impeachment, see State v. Comstock, 647 S. W. 2d 163, 165 (Mo. App. 1983). Indeed, it is not even clear that a Missouri court could legally admit the parole revocation to impeach petitioner. See State v. Newman, 568 S. W. 2d 276, 278-282 (Mo. App. 1978). And as to the possibility that the parole revocation could be used directly against petitioner should he be the object of a criminal prosecution, it is at least as likely that the conduct underlying the revocation, rather than the revocation itself (which does not recite the specific conduct constituting the parole violation) would be used.

IV

Petitioner raises three more arguments, none of which seems to us well taken. First, he contends that since our decision in Heck v. Humphrey, 512 U. S. 477 (1994), would foreclose him from pursuing a damages action under Rev. Stat. § 1979, 42 U. S. C. § 1983, unless he can establish the invalidity of his parole revocation, his action to establish that invalidity cannot be moot. This is a great non sequitur, unless one believes (as we do not) that a § 1983 action for damages must always and everywhere be available. It is not certain, in any event, that a § 1983 damages claim would be foreclosed. If, for example, petitioner were to seek damages “for using the wrong procedures, not for reaching the wrong result,” see Heck, 512 U. S., at 482-483, and if that procedural defect did not “necessarily imply the invalidity of” the revocation, see id., at 487, then Heck would have no application all. See also Edwards v. Balisok, 520 U. S. 641, 645-649 (1997); id., at 649-650 (GINSBURG, J., concurring).

Secondly, petitioner argues in his reply brief that this ease falls within the exception to the mootness doctrine for cases that are “capable of repetition, yet evading review.” Reply Brief for Petitioner 5. “[T]he eapable-of-repetition doctrine applies only in exceptional situations,” Lyons, swpra, at 109, “where the following two circumstances [are] simultaneously present: ‘“(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again,”Lewis, 494 U. S., at 481 (quoting Murphy v. Hunt, 455 U. S. 478, 482 (1982) (per curiam), in turn quoting Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam)); see also Norman v. Reed, 502 U. S. 279, 288 (1992). Petitioner’s ease satisfies neither of these conditions. He has not shown (and we doubt that he could) that the time between parole revocation and expiration of sentence is always so short as to evade review. Nor has he demonstrated a reasonable likelihood that he will once again be paroled and have that parole revoked.

Finally, petitioner argues that, even if his case is moot, that fact should be ignored because it was caused by the dilatory tactics of the state attorney general’s office and the delay of the District Court. But mootness, however it may have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong. As for petitioner’s concern that law enforcement officials and district judges will repeat with impunity the mootness-produeing abuse that he alleges occurred here: We are confident that, as a general matter, district courts will prevent dilatory tactics by the litigants and will not unduly delay their own rulings; and that, where appropriate, corrective mandamus will issue from the courts of appeals.

* * *

For the foregoing reasons, we affirm the judgment of the Court of Appeals.

It is so ordered.

Justice Souter,

with whom Justice O’Connor, Justice Ginsburg, and Justice Breyer join, concurring.

I join the Court’s opinion as well as the judgment, though I do so for an added reason that the Court does not reach, but which I spoke to while concurring in a prior case. One of Spencer’s arguments for finding his present interest adequate to support continuing standing despite his release from custody is, as he says, that he may not now press his claims of constitutional injury by action against state officers under 42 U. S. C. § 1983. He assumes that Heck v. Humphrey, 512 U. S. 477 (1994), held or entails that conclusion, with the result that holding his habeas claim moot would leave him without any present access to a federal forum to show the unconstitutionality of his parole revocation. If Spencer were right on this point, his argument would provide a reason, whether or not dispositive, to recognize continuing standing to litigate his habeas claim. But he is wrong; Heck did not hold that a released prisoner in Spencer’s circumstances is out of court on a § 1983 claim, and for reasons explained in my Heck concurrence, it would be unsound to read either Heck or the habeas statute as requiring any such result. For all that appears here, then, Spencer is free to bring a §1983 action, and his corresponding argument for continuing habeas standing falls accordingly.

The petitioner in Heck was an inmate with a direct appeal from his conviction pending, who brought a § 1983 action for damages against state officials who were said to have acted unconstitutionally in arresting and prosecuting him. Drawing an analogy to the tort of malicious prosecution, we ruled that an inmate’s §1983 claim for damages was unavailable because he could not demonstrate that the underlying criminal proceedings had terminated in his favor.

To be sure, the majority opinion in Heck can be read to suggest that this favorable-termination requirement is an element of any § 1983 action alleging unconstitutional conviction, whether or not leading to confinement and whether or not any confinement continued when the § 1983 action was filed. Heck v. Humphrey, 512 U. S., at 483-484, 486-487. Indeed, although Heck did not present such facts, the majority acknowledged the possibility that even a released prisoner might not be permitted to bring a § 1983 action implying the invalidity of a conviction or confinement without first satisfying the favorable-termination requirement. Id., at 490, n. 10.

Concurring in the judgment in Heck, I suggested a different rationale for blocking an inmate’s suit with a requirement to show the favorable termination of the underlying proceedings. In the manner of Preiser v. Rodriguez, 411 U. S. 475 (1973), I read the “general” § 1983 statute in light of the “specific” federal habeas statute, which applies only to persons “in custody,” 28 U. S. C. § 2254(a), and requires them to exhaust state remedies, § 2254(b). Heck v. Humphrey, 512 U. S., at 497. I agreed that “the statutory scheme must be read as precluding such attacks,” id., at 498, not because the favorable-termination requirement was necessarily an element of the § 1983 cause of action for unconstitutional conviction or custody, but because it was a “simple way to avoid collisions at the intersection of habeas and § 1983.” Ibid.

I also thought we were bound to recognize the apparent scope of § 1983 when no limitation was required for the sake of honoring some other statute or weighty policy, as in the instance of habeas. Accordingly, I thought it important to read the Court’s Heck opinion as subjecting only inmates seeking §1983 damages for unconstitutional conviction or confinement to “a requirement analogous to the malicious-prosecution tort’s favorable-termination requirement,” id., at 500, lest the plain breadth of § 1983 be unjustifiably limited at the expense of persons not “in custody” within the meaning of the habeas statute. The subsequent case of Edwards v. Balisok, 520 U. S. 641 (1997), was, like Heck itself, a suit by a prisoner and so for present purposes left the law where it was after Heck. Now, as then, we are forced to recognize that any application of the favorable-termination requirement to §1983 suits brought by plaintiffs not in custody would produce a patent anomaly: a given claim for relief from unconstitutional injury would be placed beyond the scope of § 1983 if brought by a convict free of custody (as, in this case, following service of a full term of imprisonment), when exactly the same claim could be redressed if brought by a former prisoner who had succeeded in cutting his custody short through habeas.

The better view, then, is that a former prisoner, no longer “in custody,” may bring a § 1983 action establishing the un-eonstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy. Thus, the answer to Spencer’s argument that his habeas claim cannot be moot because Heck bars him from relief under § Í983 is that Heck has no such effect. After a prisoner’s release from custody, the habeas statute and its exhaustion requirement have nothing to do with his right to any relief.

Justice Ginsburg,

concurring.

The Court held in Heck v. Humphrey, 512 U. S. 477 (1994), that a state prisoner may not maintain an action under 42 U. S. C. § 1983 if the direct or indirect effect of granting relief would be to invalidate the state sentence he is serving. I joined the Court’s opinion in Heck. Mindful of “real-life example[s],” among them this case, cf. 512 U, S., at 490, n. 10, I have come to agree with Justice Souter’s reasoning: Individuals without recourse to the habeas statute because they are not “in custody” (people merely fined or whose sentences have been fully served, for example) fit within §1983’s “broad reach.” See id., at 503 (Souter, J., concurring in judgment); cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”). On that understanding of the state of the law, I join both the Court’s opinion and Justice Souter’s concurring opinion in this case.

Justice Stevens,

dissenting.

An official determination that a person has committed a crime may cause two different kinds of injury. It may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms, and the risk of greater punishment if another crime is committed. It may also severely injure the person’s reputation and good name.

In holding that petitioner's case is moot, the Court relies heavily on our opinion in Lane v. Williams, 455 U. S. 624 (1982) (opinion of Stevens, J.). See ante, at 12-16. Lane, however, is inapposite. In Lane, the respondents did not seek to challenge the factual findings underlying their parole revocations. 455 U. S., at 633. Instead, they simply sought to challenge their sentences; yet because they had been released by the time the case reached us, the case was moot. Id., at 631. “Through the mere passage of time, respondents ha[d] obtained all the relief that they sought.” Id., at 633.

In this ease, petitioner challenges the factual findings on which his parole revocation was based. His parole was revoked based on an official determination that he committed the crime of forcible rape. Assuming, as the Court does, that he had standing to bring that challenge while he remained in prison, the mootness question, as framed by the Court, is whether he continues to have “ ‘a “personal stake in the outcome” of the lawsuit’ ” that is likely to be redressed by a favorable decision. Ante, at 7.

Given the serious character of a finding that petitioner is guilty of forcible rape, that question must be answered affirmatively. It may well be true that many prisoners have already caused so many self-inflicted wounds to their good names that an additional finding of guilt may have only a de minimis impact on their reputations. I do not believe, however, that one can say that about a finding that an individual has committed a serious felony. Moreover, even if one may question the wisdom of providing a statutory remedy to redress such an injury, I surely cannot accept the view that an interest in vindicating one’s reputation is constitutionally insufficient to qualify as a “personal stake in the outcome.” Indeed, in light of the fact that we have held that an interest in one’s reputation is sufficient to confer standing, it necessarily follows that such an interest is sufficient to defeat a claim of mootness.

Accordingly, I respectfully dissent.

       Specifically, according to petitioner's brief, he contended:
      “1. The Board denied him his right to a preliminary revocation hearing on the armed criminal action accusation....
      “2. The Board denied him a hearing on the cancellation of his conditional release date.
      “3. The Board ...:
      “a. . . . denied him the right to confront and cross-examine any of the witnesses against him....
      “b. . . . gave him no notice that the entire ease for revoking his parole would be the out-of-court statements in the violation report.
      “c. . .. denied him the right to representation by a person of his choice. “4. The Board failed to apprise him of the fact of its decision to revoke his parole, and of the evidence it relied on in doing so, for four months, when its regulations required that. . . the parolee be provided [such a] statement within ten working days from the date of the decision.” See Brief for Petitioner 5-6.

       By the time the case reached the Eighth Circuit, petitioner was once again in prison, this time serving a 7-year sentence for attempted felony stealing. He is still there, and the State informs us that he is scheduled to be released on parole on January 24,1999. See Brief for Respondents 8, n. 4.

        Sibron also purported to rely on United States v. Morgan, 346 U. S. 502 (1954), and Fiswick v. United States, 329 U. S. 211 (1946), as establishing that a “mere possibility” of collateral consequences suffices, see 392 U. S., at 54-55, but as we have described, those cases involved much more than that.

       The internal quotation is from a portion of Flast v. Cohen, 392 U. S. 83, 95 (1968), which recited this to be the second purpose of the case-or-controversy requirement in general. The opinion later said that the constitutionally required minimum of standing relates to the first purpose alone. Id., at 100-101, quoted in text.

       The Court pointed out in Lane that respondents were attacking only their parole sentences, and not then convictions, see 455 U. S., at 631. That was evidently for the purpose of excluding direct application of Sib-ron. The Court also pointed out, near the conclusion of its opinion, that respondents were not attacking “the finding that they violated the terms of their parole.” 455 U. S., at 633. This is not framed as an independent ground for the decision, and if it were such most of the opinion would have been unnecessary. The Court did not contest the dissenters’ contention that “respondents .. . seek to have the parole term declared void, or expunged,” id., at 635 (Marshall, J., dissenting), which “would have the effect of removing respondents’ parole-violation status and would relieve respondents of the collateral consequences flowing from this status,” id., at 636, n. 1.

       Federal Rule of Evidence 405 provides, in relevant part, that “[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may ... be made of specific instances of that person’s conduct.”

       Federal Rule of Evidence 413 provides, in relevant part, that “[i]n a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”

       The dissent asserts that “a finding that an individual has committed a serious felony” renders the “interest in vindicating . . . reputation . . . constitutionally [s]ufficient” to avoid mootness. Post, at 23,24. We have obviously not regarded it as sufficient in the past — even when the finding was not that of a parole board, but the much more solemn condemnation of a full-dress criminal conviction. For that would have rendered entirely unnecessary the inquiry into concrete collateral consequences of conviction in many of our eases, see, e. g., Benton v. Maryland, 395 U. S. 784, 790-791 (1969); Carafas v. LaVallee, 391 U. S. 234, 237-238 (1968); Fiswick, 329 U. S., at 220-222, and unnecessary as well (at least as to felony convictions) Sibron’s presumption of collateral consequences, see supra, at 8-10. Of course there is no reason in principle for limiting the dissent’s novel theory to felonies: If constitutionally adequate damage to reputation is produced by a parole board’s finding of one more felony by a current inmate who has spent six of the last seven years in custody on three separate felony convictions, surely it is also produced by the criminal misdemeanor conviction of a model citizen. Perhaps for obvious reasons, the damage to reputation upon which the dissent would rest its judgment has not been asserted before us by petitioner himself

       As we have stated: “[T]he individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.’” Gertz v. Robert Welch, Inc., 418 U. S. 323, 341 (1974) (quoting Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring)); see also Milkovich v. Lorain Journal Co., 497 U. S. 1, 12 (1990) (‘“[H]e that filches from me my good name/Robs me of that which not enriches him, And makes me poor indeed”’ (quoting W. Shakespeare, Othello, act III, sc. 3)); Paul v. Davis, 424 U. S., at 706 (“The Court has recognized the serious damage that could be inflicted by branding a government employee as ‘disloyal,’ and thereby stigmatizing his good name”); Wisconsin v. Constantineau, 400 U. S. 433, 437 (1971) (emphasizing the importance of “a person’s good name, reputation, honor, [and] integrity”; holding that respondent was entitled to due process before notices were posted stating that he was prohibited from buying or receiving alcohol); In re Winship, 397 U. S. 358, 363-364 (1970) (“[Because of the certainty that [one found guilty of criminal behavior] would be stigmatized by the conviction . . . , a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt”); Wieman v. Updegraff, 344 U. S. 183, 190-191 (1952) (“There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy”).
      Indeed, vindicating one’s reputation is the main interest at stake in a defamation ease, and that interest has always been held to constitute a sufficient “personal stake.” See, e. g., Paul, 424 U. S., at 697 (“[Respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages”); Gertz, 418 U. S., at 349-350 (“We need not define ‘actual injury’ .... Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”); L. Eldredge, Law of Defamation §53, pp. 293-294 (1978) ("There is no doubt about the historical fact that the interest in one’s good name was considered an important interest requiring legal protection more than a thousand years ago; and that so far as Anglo-Saxon history is concerned this interest became a legally protected interest comparatively soon after the interest in bodily integrity was given legal protection”).

      The convict given a fine alone, however onerous, or sentenced to a term too short to permit even expeditious litigation without continuances before expiration of the sentence, would always be ineligible for §1983 relief See Heck v. Humphrey, 512 U. S. 477, 500 (1994) (Soutek, J., concurring in judgment).

       Throughout the parole revocation proceedings, it was alleged that petitioner violated three parole conditions: Parole Condition #1, because he allegedly was guilty of rape; Parole Condition #6, because he allegedly used or possessed crack cocaine; and Parole Condition#?, because he allegedly used or possessed a dangerous weapon (i. e., the screwdriver allegedly used during the rape). App. 60-64 (alleging violations of Conditions #1, #6, and #?); id., at 72-76 (same); id., at 112-114 (alleging violations of Conditions #1 and #6). Thus, when the parole revocation board declared, “after careful consideration of evidence presented,” that petitioner violated Parole Conditions #1, #6, and #7, id., at 55-56, it found that petitioner was guilty of forcible rape. See also Brief for Respondents 1 (“Spencer violated condition #1 by committing the crime of rape”). In addition, even apart from the rape finding, it is-undisputed that the board found that petitioner used or possessed drugs, and that he used or possessed a dangerous weapon (which was only alleged to have been used during the rape). App. 55-56.

       The “personal stake in the outcome” formulation of the test, which has been repeatedly quoted in our cases, was first articulated in this excerpt from the Court opinion in Baker v. Carr, 369 U. S. 186, 204 (1962): “Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.”

       See, e. g., Liberty Lobby, Inc. v. Anderson, 746 F. 2d 1563, 1568 (CADC 1984) (opinion of Sealia, J.) (“It is shameful that Benedict Arnold was a traitor; but he was not a shoplifter to boot, and one should not have been able to make that charge while knowing its falsity with impunity.... Even the public outcast’s remaining good reputation, limited in scope though it may be, is not inconsequential”), vacated and remanded, on other grounds, 477 U. S. 242 (1986).

       While an individual may not have a “property” or “liberty” interest in his or her reputation so as to trigger due process protections, Paul v. Davis, 424 U. S. 693, 712 (1976), that question is obviously distinct from whether an interest in one’s reputation is sufficient to defeat a claim of mootness.

         Meese v. Keene, 481 U. S. 465, 472-477 (1987).

       There are compelling reasons for a court to consider petitioner’s challenge to the parole board’s findings sooner rather than later. As we stated in a related context:
      “The question of the validity of a criminal conviction can arise in many contexts, and the sooner the issue is fully litigated the better for all concerned. It is always preferable to litigate a matter when it is directly and principally in dispute, rather than in a proceeding where it is collateral to the central controversy. Moreover, litigation is better conducted when the dispute is fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade. And it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State’s right to impose it on the basis of some past action.” Sibron v. New York, 392 U. S. 40, 56-57 (1968) (citation omitted).
      I also believe that, on the facts of this case, there are sufficient tangible consequences to the parole board’s findings so as to defeat a claim of mootness.

       Given the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under 42 U. S. C. § 1983.


author: Justice Souter

text:
    LEXECON INC. et al. v. MILBERG WEISS BERSHAD HYNES & LERACH et al.
    No. 96-1482.

    Argued November 10, 1997
    Decided March 3, 1998

      Souter, J., delivered the opinion of the Court, which was unanimous except insofar as Scalia, J., did not join Part II-C.

      Michael K. Kellogg argued the cause for petitioners. With him on the briefs were Mark C. Hansen, Sean A. Lev,

      Stephen M. Shapiro, Michele L. Odorizzi, and Kenneth S. Getter.

      Jerold S. Solovy argued the cause for respondents. With him oh the brief for respondents Milberg Weiss Bershad Hynes & Leraeh et al. were Ronald L. Marmer, C. John Koch, Jeffrey T Shaw, Paul M. Smith, Thomas J Perrelli, Arthur R. Miller, and Michael Meehan. Gerald Maltz filed a brief for respondents Cotchett et al.

      Briefs of amici curiae urging reversal were filed for the Regents of the University of California by Shirley M. Hufstedler, Harold J. Mc-Elhinny, and P. Martin Simpson, Jr.; and for the Washington Legal Foundation by Daniel J. Popeo.

      Briefs of amici curiae urging affirmance were filed for the Aerospace Industries Association of America, Inc., by Thomas J. McLaughlin and Mac S. Dunaway; for the American Council of Life Insurance et al. by Theodore B. Olson, Theodore J. Boutrous, Jr., Phillip E. Stano, Craig Berrington, and Phillip Schwartz; for Eli Lilly and Co. by Charles E. Lipsey; for Owens-Illinois, Inc., by James D. Miller; and for Credit Suisse First Boston Corp. et al. by Joseph T. McLaughlin and Monroe Sonnenborn.

   Justice Souter

delivered the opinion of the Court.

Title 28 U. S. C. § 1407(a) authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact “to any district for coordinated or consolidated pretrial proceedings,” but imposes a duty on the Panel to remand any such action to the original district “at or before the conclusion of such pretrial proceedings.” Ibid. The issue here is whether a district court conducting such “pretrial proceedings” may invoke § 1404(a) to assign a transferred case to itself for trial. We hold it has no such authority.

I

In 1992, petitioners, Lexecon Inc., a law and economics consulting firm, and one of its principals (collectively, Lexe-con), brought this diversity action in the Northern District of Illinois against respondents, the law firms of Milberg Weiss Bershad Hynes & Leraeh (Milberg) and Cotehett, Illston & Pitre (Cotehett), claiming malicious prosecution, abuse of process, tortious interference, commercial disparagement, and defamation. The suit arose out of the firms’ conduct as counsel in a prior class action brought against Charles Keat-ing and the American Continental Corporation for violations of the securities and racketeering laws. Lexecon also was a defendant, charged with giving federal and state banking regulators inaccurate and misleading reports about the financial condition of the American Continental Corporation and its subsidiary Lincoln Savings and Loan. Along with other actions arising out of the failure of Lincoln Savings, the ease against Lexecon was transferred under § 1407(a) for pretrial proceedings before Judge Bilby in the District of Arizona, where the matters so consolidated were known as the Lincoln Savings litigation. Before those proceedings were over, the class-action plaintiffs and Lexecon reached what they termed a “resolution,” under which the claims against Lexecon were dismissed in August 1992.

Lexecon then filed this ease in the Northern District of Illinois charging that the prior class action terminated in its favor when the respondent law firms’ clients voluntarily dismissed their claims against Lexecon as meritless, amounting to nothing more, according to Lexecon, than a vendetta. When these allegations came to the attention of Judge Bilby, he issued an order stating his understanding of the terms of the resolution agreement between Lexecon and the class-action plaintiffs. 102 F. 3d 1524, 1529, and n. 2 (CA9 1996). Judge Bilby’s characterization of the agreement being markedly at odds with the allegations in the instant action, Lexe-eon appealed his order to the Ninth Circuit.

Milberg, joined by Cotehett, then filed a motion under § 1407(a) with the Judicial Panel on Multidistrict Litigation seeking transfer of this ease to Judge Bilby for consolidation with the Lincoln Savings litigation. Although the judge entered a recusal because of the order he had taken it upon himself to issue, the law firms nonetheless renewed their motion for a § 1407(a) transfer.

The Panel ordered a transfer in early June 1993 and assigned the case to Judge Roll, noting that Lexecon’s claims “share questions of fact with an as yet unapproved settlement involving Touche Ross, Lexecon, Inc. and the investor plaintiffs in the Lincoln Savings investor class actions in MDL-834.” App. 18. The Panel observed that “i) a massive document depository is located in the District of Arizona and ii) the Ninth Circuit has before it an appeal of an order [describing the terms of Lexecon’s dismissal from the Lincoln Savings litigation] in MDL-834 which may be relevant to the Lexecon claims.” Ibid. Prior to any dispositive action on Lexecon’s instant claims in the District of Arizona, the Ninth Circuit appeal mentioned by the Panel was dismissed, and the document depository was closed down.

In November 1993, Judge Roll dismissed Lexeeon’s state-law malicious prosecution and abuse of process claims, applying a “heightened pleading standard,” 845 F. Supp. 1377, 1383 (Ariz. 1993). Although the law firms then moved for summary judgment on the claims remaining, the judge deferred action pending completion of discovery, during which time the remaining parties to the Lincoln Savings litigation reached a final settlement, on which judgment was entered in March 1994.

In August 1994, Lexecon moved that the District Court refer the ease back to the Panel for remand to the Northern District of Illinois, thus heeding the point of Multidistrict Litigation Rule 14(d), which provides that “[t]he Panel is reluctant to order remand absent a suggestion of remand from the transferee district court.” The law firms opposed a remand because discovery was still incomplete and filed a coun-termotion under § 1404(a) requesting the District of Arizona to “transfer” the case to itself for trial. Judge Roll deferred decision on these motions as well.

In November 1994, Lexecon again asked the District Court to request the Panel to remand the ease to the Northern District of Illinois. Again the law firms objected and requested a § 1404 transfer, and Judge Roll deferred ruling once more. On April 24, 1995, however, he granted summary judgment in favor of the law firms on all remaining claims except one in defamation brought against Milberg, and at the same time he dismissed Milberg’s counterclaims. 884 P. Supp. 1388, 1397 (Ariz. 1995). Cotchett then made a request for judgment under Federal Rule of Civil Procedure 54(b). Lexecon objected to the exercise of Rule 54(b) discretion, but did not contest the authority of the District Court in Arizona to enter a final judgment in Cotehett’s favor. On June 7, 1995, the court granted respondent Cotehett’s Rule 54(b) request.

In the meantime, the Arizona court had granted the law firms’ § 1404(a) motions to assign the case to itself for trial, and simultaneously had denied Lexecon’s motions to request the Panel to remand under § 1407(a). Lexecon sought immediate review of these last two rulings by filing a petition for mandamus in the Ninth Circuit. After argument, a majority of the Circuit panel, over the dissent of Judge Kozinski, denied Lexeeon’s requests to vacate the self-assignment order and require remand to the Northern District of Illinois. The Circuit so ruled even though the majority was “not prepared to say that [Lexecon’s] contentions lack merit” and went so far as to note the conflict between “what appears to be a clear statutory mandate [of § 1407 and § 1404]” and Multidistriet Litigation Rule 14(b), which explicitly authorizes a transferee court to assign an action to itself for trial. Lexecon v. Milberg Weiss, No. 95-70380 (CA9, July 21,1995), p. 4. The majority simply left that issue for another day, relying on its assumption that Lexecon would have an opportunity to obtain relief from the transfer order on direct appeal: “[tjhe transfer order can be appealed immediately along with other issues in the event the petitioners lose on the merits [at trial].” Id., at p. 3.

Trial on the surviving defamation claim then went forward in the District of Arizona, ending in judgment for Milberg, from which Lexecon appealed to the Ninth Circuit. It again appealed the denial of its motion for a suggestion that the Panel-remand the matter to the Northern District of Illinois, and it challenged the dismissal of its claims for malicious prosecution and abuse of process, and the entry of final judgment in favor of Cotehett. Lexecon took no exception to the Arizona court’s jurisdiction (as distinct from venue) and pursued no claim of error in the conduct of the trial.

A divided panel of the Ninth Circuit affirmed, relying on the Panel’s Rule 14 and appellate and District Court decisions in support of the District Court’s refusal to support remand under § 1407(a) and its decision to assign the case to itself under § 1404(a). 102 F. 3d, at 1532-1535. While the majority indicated that permitting the transferee court to assign a ease to itself upon completion of its pretrial work was not only consistent with the statutory language but conducive to efficiency, Judge Kozinski again dissented, relying on the texts of §§ 1407(a) and 1404(a) and a presumption in favor of a plaintiff’s choice of forum. We granted certiorari, 520 U. S. 1227 (1997), to decide whether § 1407(a) does permit a transferee court to entertain a § 1404(a) transfer motion to keep the ease for trial.

II

A

In defending the Ninth Circuit majority, Milberg may claim ostensible support from two quarters. First, the Panel has itself sanctioned such assignments in a rule issued in reliance on its rulemaking authority under 28 U. S. C. § 1407(f). The Panel’s Rule 14(b) provides that “[e]ach transferred action that has not been terminated in the transferee district court shall be remanded by the Panel to the transferor district for trial, unless ordered transferred by the transferee judge to the transferee or other district under 28 U.S.C. § 1404(a) or 28 U.S.C. §1406.” Thus, out of the 39,228 cases transferred under § 1407 and terminated as of September 30, 1995, 279 of the 3,787 ultimately requiring trial were retained by the courts to which the Panel had transferred them. Administrative Office of the United States, L. Meeham, Judicial Business of the United States Courts: 1995 Report of the Director 32. Although the Panel’s rule and the practice of self-assignment have not gone without challenge, see, e. g., 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3866, p. 619 (2d ed. 1986) (hereinafter Wright, Miller, & Cooper); Trangsrud, Joinder Alternatives in Mass Tort Litigation, 70 Cornell L. Rev. 779, 809 (1985); Levy, Complex Multidistriet Litigation and the Federal Courts, 40 Ford. L. Rev. 41, 64-65 (1972), federal courts have treated such transfers with approval, beginning with the Second Circuit’s decision in Pfizer, Inc. v. Lord, 447 F. 2d 122, 124-125 (1971) (per curiam) (upholding MDL Rule 15(d), the precursor to Rule 14(b)). See, e. g., In re Fine Paper Antitrust Litigation, 685 F. 2d 810, 820, and n. 7 (CA3 1982); In re Air Crash Disaster at Detroit Metro. Airport, 737 F. Supp. 391, 393-394 (ED Mich. 1989); In re Viatron Computer Sys. Corp., 86 F. R. D. 431, 432 (Mass. 1980).

The second source of ostensible authority for Milberg’s espousal of the self-assignment power here is a portion of text of the multidistrict litigation statute itself:

“When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” 28 U.S. C. § 1407(a).

Although the statute limits a transferee court’s authority to the conduct of “coordinated or consolidated” proceedings and to those that are “pretrial,” these limitations alone raise no obvious bar to a transferee’s retention of a case under § 1404. If “consolidated” proceedings alone were authorized, there would be an argument that self-assignment of one or some cases out of many was not contemplated, but because the proceedings need only be “coordinated,” no such narrow limitation is apparent. While it is certainly true that the instant case was not “consolidated” with any other for the purpose literally of litigating identical issues on common evidence, it is fair to say that proceedings to resolve pretrial matters were “coordinated” with the conduct of earlier cases sharing the common core of the Lincoln Savings debacle, if only by being brought before judges in a district where much of the evidence was to be found and overlapping issues had been considered. Judge Bilby’s recusal following his decision to respond to Lexecoris Illinois pleadings may have limited the prospects for coordination, but it surely did not eliminate them. Hence, the requirement that a transferee court conduct “coordinated or consolidated” proceedings did not preclude the transferee Arizona court from ruling on a motion (like the § 1404 request) that affects only one of the cases before it.

Likewise, at first blush, the statutory limitation to “pretrial” proceedings suggests no reason that a § 1407 transferor court could not entertain a § 1404(a) motion. Section 1404(a) authorizes a district court to transfer a ease in the interest of justice and for the convenience of the parties and witnesses. See § 1404(a). Such transfer requests are typically resolved prior to discovery, see Wright, Miller, & Cooper § 3866, at 620, and thus are classic “pretrial” motions.

Beyond this point, however, the textual pointers reverse direction, for § 1407 not only authorizes the Panel to transfer for coordinated or consolidated pretrial proceedings, but obligates the Panel to remand any pending case to its originating court when, at the latest, those pretrial proceedings have run their course.

“Each action so transferred shall he remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.” § 1407(a) (proviso without application here omitted).

The Panel’s instruction comes in terms of the mandatory “shall,” which normally creates an obligation impervious to judicial discretion. Anderson v. Yungkau, 329 U. S. 482, 485 (1947). In the absence of any indication that there might be circumstances in which a transferred ease would be neither “terminated” nor subject to the remand obligation, then, the statutory instruction stands flatly at odds with reading the phrase “coordinated or consolidated pretrial proceedings” so broadly as to reach its literal limits, allowing a transferee court’s self-assignment to trump the provision imposing the Panel’s remand duty. If we do our job of reading the statute whole, we have to give effect to this plain command, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), even if doing that will reverse the longstanding practice under the statute and the rule, see Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, 300 (1995) (“ ‘Age is no antidote to clear inconsistency with a statute’” (quoting Brown v. Gardner, 513 U. S. 115, 122 (1994))).

As the Ninth Circuit panel majority saw it, however, the inconsistency between an expansive view of “coordinated or consolidated pretrial” proceedings and the uncompromising terms of the Panel’s remand obligation disappeared as merely an apparent conflict, not a real one. The “focus” of § 1407 was said to be constituting the Panel and defining its authority, not circumscribing the powers of district courts under § 1404(a). 102 F. 3d, at 1533. Milberg presses this point in observing that § 1407(a) does not, indeed, even apply to transferee courts, being concerned solely with the Panel’s duties, whereas § 1407(b), addressed to the transferee courts, says nothing about the Panel’s obligation to remand. But this analysis fails to persuade, for the very reason that it rejects that central tenet of interpretation, that a statute is to be considered in all its parts when construing any one of them. To emphasize that § 1407(b) says nothing about the Panel’s obligation when addressing a transferee court’s powers is simply to ignore the necessary consequence of self-assignment by a transferee court: it conclusively thwarts the Panel’s capacity to obey the unconditional command of § 1407(a).

A like use of blinders underlies the Circuit majority’s conclusion that the Panel was not even authorized to remand the ease under its Rule 14(c), the terms of which condition the remand responsibility on a suggestion of the transferee court, a motion filed directly with the Panel, or the Panel’s sua sponte decision to remand. None of these conditions was fulfilled, according to the Court of Appeals, which particularly faulted Lexecon for failing to file a remand motion directly with the Panel, as distinct from the transferee court. This analysis, too, is unpersuasive; it just ignores the fact that the statute places an obligation on the Panel to remand no later than the conclusion of pretrial proceedings in the transferee court, and no exercise in rulemaking can read that obligation out of the statute. See 28 U. S. C. § 1407(f) (express requirement that rules be consistent with statute).

B

Milberg proffers two further arguments for overlooking the tension between a broad reading of a court’s pretrial authority and the Panel’s remand obligation. First, it relies on a subtle reading of the provision of § 1407(a) limiting the Panel’s remand obligation to eases not “previously terminated” during the pretrial period. To be sure, this exception to the Panel’s remand obligation indicates that the Panel is not meant to issue ceremonial remand orders in eases already concluded by summary judgment, say, or dismissal. But according to Milberg, the imperative to remand is also inapplicable to cases self-assigned -under § 1404, because the self-assignment “terminates” the case insofar as its venue depends on § 1407. When the § 1407 character of the action disappears, Milberg argues, the strictures of § 1407 fall away as well, relieving the Panel of any further duty in the case. The trouble with this creative argument, though, is that the statute manifests no such subtlety. Section 1407(a) speaks not in terms of imbuing transferred actions with some new and distinctive venue character, but simply in terms of “civil actions” or “actions.” It says that such an action, not its acquired personality, must be terminated before the Panel is excused from ordering remand. The language is straightforward, and with a straightforward application ready to hand, statutory interpretation has no business getting metaphysical.

Second, Milberg tries to draw an inference in its favor from the one subsection of §1407 that does authorize the Panel to transfer a ease for trial as well as pretrial proceedings. Subsection (h) provides that,

“[notwithstanding the provisions of section 1404 or subsection (f) of this section, the judicial panel on multi-district litigation may consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under section 4C of the Clayton Act.”

Milberg fastens on the introductory language explicitly overriding the “provisions of section 1404 or subsection (f),” which would otherwise, respectively, limit a district court to transferring a case “to any other district or division where it might have been brought,” § 1404(a), and limit the Panel to prescribing rules “not inconsistent with Acts of Congress,” § 1407(f). On Milberg’s reasoning, these overrides are required because the cited provisions would otherwise conflict with the remainder of subsection (h) authorizing the Panel to order trial of certain Clayton Act cases in the transferee court. The argument then runs that since there is no override of subsection (a) of § 1407, subsection (a) must be consistent with a transfer for trial as well as pretrial matters. This reasoning is fallacious, however. Subsections (a) and (h) are independent sources of transfer authority in the Panel; each is apparently written to stand on its own feet. Subsection (h) need not exclude the application of subsection (a), because nothing in (a) would by its terms limit any provision of (h).

Subsection (h) is not merely valueless to Milberg, however; it is ammunition for Lexecon. For the one point that subsection (h) does demonstrate is that Congress knew how to distinguish between trial assignments and pretrial proceedings in cases subject to § 1407. Although the enactment of subsection (a), Act of Apr. 29, 1968, 82 Stat. 109, preceded the enactment of subsection (h), Act of Sept. 80, 1976, § 80S, 90 Stat. 1394, 1396, the fact that the later section distinguishes trial assignments from pretrial proceedings generally is certainly some confirmation for our conclusion, on independent grounds, that the subjects of pretrial proceedings in subsections (a) and (b) do not include self-assignment orders.

C

There is, finally, nothing left of Milberg’s position beyond an appeal to legislative history, some of which turns out to ignore the question before us, and some of which may support Lexeeon. Milberg cites a House Report on the bill that became § 1407, which addresses the question of trial transfer in multidistrict litigation cases by saying that, “[o]f course, 28 U. S. C. 1404, providing for changes of venue generally, is available in those instances where transfer of a case for all purposes is desirable.” H. R. Rep. No. 1130, 90th Cong., 2d Sess., p. 4 (1968) (hereinafter H. R. Rep.), cited in Brief for Respondents Milberg et al. 25. But the question is not whether a change of venue may be ordered in a case consolidated under § 1407(a); on any view of § 1407(a), if an order may be made under § 1404(a), it may be made after remand of the ease to the originating district court. The relevant question for our purposes is whether a transferee court, and not a transferor court, may grant such a motion, and on this point, the language cited by Milberg provides no guidance.

If it has anything to say to us here, the legislative history tends to confirm that self-assignment is beyond the scope of the transferee court’s authority. The same House Report that spoke of the continued vitality of § 1404 in § 1407 eases also said this:

“The proposed statute affects only the pretrial stages in multidistrict litigation. It would not affect the place of trial in any case or exclude the possibility of transfer under other Federal statutes.
“The subsection requires that transferred cases be remanded to the originating district at the close of coordinated pretrial proceedings. The bill does not, therefore, include the trial of cases in the consolidated proceedings.” H. R. Rep., at 3-4.

The comments of the bill's sponsors further suggest that application of § 1407 (before the addition of subsection (h)) would not affect the place of trial. See, e. g., Multidistrict Litigation: Hearings on S. 3815 and S. 159 before the Subcommittee on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 90th Cong., 1st Sess., pt. 2, p. 110 (1967) (Sen. Tydings) (“[W]hen the deposition and discovery is completed, then the original litigation is remanded to the transferor district for the trial”). Both the House and the Senate Reports stated that Congress would have to amend the statute if it determined that multidistrict litigation eases should be consolidated for trial. S. Rep. No. 454, 90th Cong., 1st Sess., p. 5 (1967).

D

In sum, none of the arguments raised can unsettle the straightforward language imposing the Panel’s responsibility to remand, which bars recognizing any self-assignment power in a transferee court and consequently entails the invalidity of the Panel’s Rule 14(b). See 28 U. S. C. § 1407(f). Milberg may or may not be correct that permitting transferee courts to make self-assignments would be more desirable than preserving a plaintiff’s choice of venue (to the degree that § 1407(a) does so), but the proper venue for resolving that issue remains the floor of Congress. See Am- chem Products, Inc. v. Windsor, 521 U. S. 591, 628-629 (1997); Finley v. United States, 490 U. S. 545, 556 (1989).

III

The remaining question goes to the remedy, which Milberg argues may be omitted under the harmless-error doctrine. Milberg posits a distinction between a first category of eases erroneously litigated in a district in which (absent waiver) venue may never be laid under the governing statute, see Olberding v. Illinois Central R. Co., 346 U. S. 338, 340 (1953), and a second category, in which the plaintiff might originally have chosen to litigate in the trial forum to which it was unwillingly and erroneously carried, as by a transfer under § 1404. In the first, reversal is necessary; in the second, af-firmance is possible if no independent and substantial right was violated in a trial whose venue was determined by a discretionary decision. Since Lexeeon could have brought suit in the Arizona district consistently with the general venue requirements of 28- U. S. C. § 1391, and since the transfer for trial was made on the authority of § 1404(a), Milberg argues, this ease falls within the second category and should escape reversal because none of Lexecon’s substantial rights was prejudicially affected, see §2111. Assuming the distinction may be drawn, however, we think this ease bears closer analogy to those in the first category, in which reversal with new trial is required because venue is precluded by the governing statute.

Milberg’s argument assumes the only kind of statute entitled to respect in accordance with its uncompromising terms is a statute that categorically limits a plaintiff’s initial choice of forum. But there is no apparent reason why courts should not be equally bound by a venue statute that just as categorically limits the authority of courts (and special panels) to override a plaintiffs choice. If the former statute creates interests too substantial to be denied without a remedy, the latter statute ought to be recognized as creating interests equally substantial. In each instance the substan-tiality of the protected interest is attested by a congressional judgment that in the circumstances described in the statute no discretion is to be left to a court faced with an objection to a statutory violation. To render relief discretionary in either instance would be to allow uncorrected defiance of a categorical congressional judgment to become its own justification. Accordingly, just as we agree with Milberg that the strict limitation on venue under, say, § 1391(a) (diversity action “may ... be brought only...”) is sufficient to establish the substantial character of any violation, Brief for Respondents Milberg et al. 43 (citing Olberding, supra), the equally strict remand requirement contained in § 1407 should suffice to establish the substantial significance of any denial of a plaintiff’s right to a remand once the pretrial stage has been completed.

Nor is Milberg correct that our recent decision in Caterpillar Inc. v. Lewis, 519 U. S. 61 (1996), is to the contrary. In that case, which got no new trial, the jurisdictional defect (a lack of complete diversity) had been cured by subsequent events. While the statutory error (failure to comply with the § 1441(a) requirement that the ease be fit for federal adjudication when the removal petition is filed) “remained in the unerasable history of the case,” id., at 73, in the sense that it had not been cured within the statutory period, it had otherwise been cured by the time judgment was entered. The instant ease is different from that one, inasmuch as there was no continuing defiance of the congressional condition in Caterpillar, but merely an untimely compliance. It was on this understanding that we held that considerations of “finality, efficiency, and economy” trumped the error, id., at 75. After Caterpillar, therefore, since removal is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment, the condition contained in the removal statute retains significance. But the § 1407(a) mandate would lose all meaning if a party who continuously objected to an uneorrected categorical violation of the mandate could obtain no relief at the end of the day.

Accordingly, the judgment of the Court of Appeals is reversed, and the ease is remanded for further proceedings consistent with this opinion.

So ordered.

       Justice Scaua joins this opinion, except as to Part II-C.

       The Ninth Circuit stopped short of expressly inferring a waiver from Lexecon’s failure to file a motion for remand directly with the Panel, and any inference of waiver would surely have been unsound. Although the Panel’s Rule 14(e)(i) does authorize a party to file such a motion, Rule 14(d) comes close to saying that only under extraordinary circumstances will such a motion be granted without a suggestion of remand by the transferee court. (The Rule reads: “The Panel is reluctant to order remand absent a suggestion of remand from the transferee district court.”) Therefore, even if a party may waive the § 1407 remand requirement by failing to request remand from the transferor court, see 28 U. S. C. § 1406(b), Rule 14(d) precludes an inference of waiver from mere failure to request remand from the Panel.
      In this ease, moreover, one can say categorically that a motion before the Panel would have failed; the transferee court denied Lexecon’s motion for a remand suggestion simultaneously with an order assigning the case to itself for trial, thus exercising the authority that the Panel’s Rule 14(b) expressly purported to recognize. Under the Panel’s own rules, in sum, Lexecon never had a chance to waive a thing.

       It is well to note the limitations of a related argument. It may be tempting to say that the incompatibility of a self-assignment under § 1404(a) with the Panel’s mandate is confirmed by the authority of a trans-feror court to assign a case to a § 1407(a) transferee district for trial if that would be appropriate following pretrial proceedings under § 1407(a). But there is one circumstance in which a transferor court would be unable to do that. As noted, transfers under §1407 are not limited by general venue statutes; those under § 1404 are.

       See n. 2, supra.

       Because we find that the statutory language of §1407 precludes a transferee court from granting any § 1404(a) motion, we have no need to address the question whether § 1404(a) permits self-transfer given that the statute explicitly provides for transfer only “to any other district.” 28 U. S. C. § 1404(a).

       In its brief to this Court, Milberg suggests that any decision rejecting multidistrict litigation courts' practice of ruling on § 1404 transfer motions should be applied only prospectively under Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971). Because this argument was not presented below, see Brief for Milberg Defendants in No. 95-16403 et al. (CA9), or to this Court when Milberg opposed petitioners’ petition for certiorari, see Brief in Opposition for Respondents Milberg et al., it is unnecessary for us to consider it here.
      Milberg's brief also argues that petitioners are not entitled to relief because the only claim that survived for trial should have been dismissed during pretrial proceedings. We do not address the propriety of the District Court’s decision to allow this claim to go forward; the issue falls outside the question on which we granted certiorari. See this Court’s Rule 14.1(a) (“Only the questions set forth in the petition, or fairly included therein, will be considered by the Court”).

       Although Cotehett’s request for an order of dismissal under Rule 54(b) was not granted until after the Arizona court had assigned the case to itself for trial, there is no reason to reconsider that dismissal order. It was perfectly proper as a pretrial order and, for that matter, was merely the formal reflection of the Arizona court’s decision on the merits of the claims that had been resolved prior to that court’s decision on the § 1404 transfer.