source: Caselaw Access Project

author: Justice Stevens Justice Souter, Justice Scalia,

license: Public Domain

text:
    BRYAN v. UNITED STATES
    No. 96-8422.
    Argued March 31, 1998
    Decided June 15, 1998

      Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, post, p. 200. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Ginsburg, J., joined, post, p. 200.

      Roger Bennet Adler argued the cause for petitioner. With him on the briefs was Martin B. Adehnan.

      Kent L. Jones argued the cause for the United States. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and John F. De Pue

      Briefs of amici curiae urging reversal were filed for the Gun Owners Foundation by James H. Jeffries III and James H. Wentzel; and for the National Association of Criminal Defense Lawyers by Barbara Bergman and Stephen P. Halbrook.

   Justice Stevens

delivered the opinion of the Court.

Petitioner was convicted of “willfully” dealing in firearms without a federal license. The question presented is whether the term “willfully” in 18 U. S. C. § 924(a)(1)(D) requires proof that the defendant knew that his conduct was unlawful, or whether it also requires proof that he knew of the federal licensing requirement.

I

In-1968 Congress enacted the Omnibus Crime Control and Safe Streets Act. 82 Stat. 197-239. In Title IV of that Act Congress made findings concerning the impact of the traffic in firearms on the prevalence of lawlessness and violent crime in the United States and amended the Criminal Code to include detailed provisions regulating the use and sale of firearms. As amended, 18 U. S. C. §922 defined a number of “unlawful acts”; subsection (a)(1) made it unlawful for any person except a licensed dealer to engage in the business of dealing in firearms. Section 928 established the federal licensing program and repeated the prohibition against dealing in firearms without a license, and § 924 specified the penalties for violating “any provision of this chapter.” Read literally, § 924 authorized the imposition of a fine of up to $5,000 or a prison sentence of not more than five years, “or both,” on any person who dealt in firearms without a license even if that person believed that he or she was acting lawfully. As enacted in 1968, §§ 922(a)(1) and 924 omitted an express scienter requirement and therefore arguably imposed strict criminal liability on every unlicensed dealer in firearms. The 1968 Act also omitted any definition of the term “engaged in the business” even though that conduct was an element of the unlawful act prohibited by § 922(a)(1).

In 1986 Congress enacted the Firearms Owners’ Protection Act (FOPA), in part, to cure these omissions. The findings in that statute explained that additional legislation was necessary to protect law-abiding citizens with respect to the acquisition, possession, or use of firearms for lawful purposes. FOPA therefore amended § 921 to include a definition of the term “engaged in the business,” and amended §924 to add a scienter requirement as a condition to the imposition of penalties for most of the unlawful acts defined in § 922. For three categories of offenses the intent required is that the defendant acted “knowingly”; for the fourth category, which includes “any other provision of this chapter,” the required intent is that the defendant acted “willfully.” The § 922(a)(1)(A) offense at issue in this case is an "other provision” in the “willfully” category.

II

The jury having found petitioner guilty, we accept the Government’s version of the evidence That evidence proved that petitioner did not have a federal license to deal in firearms; that he used so-called “straw purchasers” in Ohio to acquire pistols that he could not have purchased himself; that the straw purchasers made false statements when purchasing the guns; that petitioner assured the straw purchasers that he would file the serial numbers off the guns; and that he resold the guns on Brooklyn street corners known for drug dealing. The evidence was unquestionably adequate to prove that petitioner was dealing in firearms, and that he knew that his conduct was unlawful. There was, however, no evidence that he was aware of the federal law that prohibits dealing in firearms without a federal license.

Petitioner was charged with a conspiracy to violate 18 U. S. C. § 922(a)(1)(A), by -willfully engaging in the business of dealing in firearms, and with a substantive violation of that provision. After the close of evidence, petitioner requested that the trial judge instruct the jury that petitioner could be convicted only if he knew of the federal licensing requirement, but the judge rejected this request. Instead, the trial judge gave this explanation of the term “willfully”:

“A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids.”

Petitioner was found guilty on both counts. On appeal he argued that the evidence was insufficient because there was no proof that he had knowledge of the federal licensing requirement, and that the trial judge had erred by failing to instruct the jury that such knowledge was an essential element of the offense. The Court of Appeals affirmed. 122 F. 3d 90 (CA2 1997). It concluded that the instructions were proper and that the Government had elicited “ample proof” that petitioner had acted willfully. App. 22.

Because the Eleventh Circuit has held that it is necessary for the Government to prove that the defendant acted with knowledge of the licensing requirement, United States v. Sanchez-Corcino, 85 F. 3d 549, 553-554 (1996), we granted certiorari to resolve the conflict. 522 U. S. 1024 (1997).

H-i

The word “willfully” is sometimes said to be “a word of many meanings” whose construction is often dependent on the context in which it appears. See, e. g., Spies v. United States, 317 U. S. 492, 497 (1943). Most obviously it differentiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind. As we explained in United States v. Murdock, 290 U. S. 389 (1933), a variety of phrases have been used to describe that concept. As a general matter, when used in the criminal context, a “willful” act is one undertaken with a “bad purpose.” In other words, in order to establish a “willful” violation of a statute, “the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Ratzlaf v. United States, 510 U. S. 135, 137 (1994).

Petitioner argues that a more particularized showing is required in this case for two principal reasons. First, he argues that the fact that Congress used the adverb “knowingly” to authorize punishment of three categories of acts made unlawful by § 922 and the word “willfully” when it referred to unlicensed dealing in firearms demonstrates that the Government must shoulder a special burden in eases like this. This argument is not persuasive because the term “knowingly” does not necessarily have any reference to a eulpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, “the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.” Thus, in United States v. Bailey, 444 U. S. 394 (1980), we held that the prosecution fulfills its burden of proving a knowing violation of the escape statute “if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission.” Id., at 408. And in Staples v. United States, 511 U. S. 600 (1994), we held that a charge that the defendant’s possession of an unregistered maehinegun was unlawful required proof “that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a maehinegun.” Id., at 602. It was not, however, necessary to prove that the defendant knew that his possession was unlawful. See Rogers v. United States, 522 U. S. 252, 254-255 (1998) (plurality opinion). Thus, unless the text of the statute dictates a different result, the term “knowingly” merely requires proof of knowledge of the facts that constitute the offense.

With respect to the three categories of conduct that are made punishable by §924 if performed “knowingly,” the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that “an evil-meaning mind” directed the “evil-doing hand.” More is required, however, with respect to the conduct in the fourth category that is only criminal when done “willfully.” The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.

Petitioner next argues that we must read § 924(a)(1)(D) to require knowledge of the law because of our interpretation of “willfully” in two other contexts. In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e. g., Cheek v. United States, 498 U. S. 192, 201 (1991). Similarly, in order to satisfy a willful violation in Ratzlaf, we concluded that the jury had to find that the defendant knew that his structuring of cash transactions to avoid a reporting requirement was unlawful. See 510 U. S., at 138, 149. Those cases, however, are readily distinguishable. Both the tax cases and Ratz-laf involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that these statutes “earv[e] out an exception to the traditional rule” that ignorance of the law is no excuse and require that the defendant have knowledge of the law. The danger of convicting individuals engaged in apparently innocent activity that motivated our decisions in the tax cases and Ratzlaf is not present here because the jury found that this petitioner knew that his conduct was unlawful.

Thus, the willfulness requirement of § 924(a)(1)(D) does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required.

IY

Petitioner advances a number of additional arguments based on his reading of congressional intent. Petitioner first points to the legislative history of FOPA, but that history is too ambiguous to offer petitioner much assistance. Petitioner’s main support lies in statements made by opponents of the bill. As we have stated, however, “[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation.” Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 394 (1951). “In their zeal to defeat a bill, they understandably tend to overstate its reach.” NLRB v. Fruit Packers, 377 U. S. 58, 66 (1964).

Petitioner next ai’gues that, at the time FOPA was passed, the “willfulness” requirements in other subsections of the statute — §§ 923(d)(l)(C)-(D) — had uniformly been interpreted by lower courts to require knowledge of the law; petitioner argues that Congress intended that “willfully” should have the same meaning in § 924(a)(1)(D). As an initial matter, the lower courts had eome to no such agreement. While some courts had stated that willfulness in § 923(d)(1) is satisfied by a disregard of a known legal obligation, willful was also interpreted variously to refer to “purposeful, intentional conduct,” “indifference] to the requirements of the law,” or merely a “conscious, intentional, deliberate, voluntary decision.” Moreover, in each of the cases in which disregard of a known legal obligation was held to be sufficient to establish willfulness, it was perfectly clear from the record that the licensee had knowledge of the law; thus, while these eases support the notion that disregard of a known legal obligation is sufficient to establish a willful violation, they in no way stand for the proposition that it is required.

Finally, petitioner argues that § 922(b)(3), which is governed by § 924(a)(l)(D)’s willfulness standard, indicates that Congress intended “willfully” to include knowledge of the law. Section 922(b)(3) prohibits licensees from selling firearms to any person who the licensee knows or has reasonable cause to believe does not reside in the licensee’s State, except where, inter alia, the transaction fully complies with the laws of both the seller’s and buyer’s State. The subsection further states that the licensee “shall be presumed, ... in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States.” Although petitioner argues that the presumption in § 922(b)(3) indicates that Congress intended willfulness to require knowledge of the law for all offenses covered by § 924(a)(1)(D), petitioner is mistaken. As noted above, while disregard of a known legal obligation is certainly sufficient to establish a willful violation, it is not necessary — and nothing in § 922(b)(3) contradicts this basic distinction.

V

One sentence in the trial court’s instructions to the jury, read by itself, contained a misstatement of the law. In a portion of the instructions that were given after the correct statement that we have already quoted, the judge stated: “In this case, the government is not required to prove that the defendant knew that a license was required, nor is the government required to grove that he had knowledge that he was breaking the law” App. 19 (emphasis added). If the judge had added the words “that required a license,” the sentence would have been accurate, but as given it was not.

Nevertheless, that error does not provide a basis for reversal for four reasons. First, petitioner did not object to that sentence, except insofar as he had argued that the jury should have been instructed that the Government had the burden of proving that he had knowledge of the federal licensing requirement. Second, in the context of the entire instructions, it seems unlikely that the jury was misled. See, e. g., United States v. Park, 421 U. S. 658, 674-675 (1975). Third, petitioner failed to raise this argument in the Court of Appeals. Finally, our grant of certiorari was limited to the narrow legal question whether knowledge of the licensing requirement is an essential element of the offense.

Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Souter,

concurring.

I join in the Court’s opinion with the caveat that if petitioner had raised and preserved a specific objection to the erroneous statement in the jury instructions, see Part V, ante, at 199 and this page, I would vote to vacate the conviction.

Justice Scalia,

with whom The ChieF Justice and Justice Ginsburg join, dissenting.

Petitioner Sillasse Bryan was convicted of “willfully” violating the federal licensing requirement for firearms dealers. The jury apparently found, and the evidence clearly shows, that Bryan was aware in a general way that some aspect of his conduct was unlawful. See ante, at 189, and n. 8. The issue is whether that general knowledge of illegality is enough to sustain the conviction, or whether a “willful” violation of the licensing provision requires proof that the defendant knew that his conduct was unlawful specifically because he lacked the necessary license. On that point the statute is, in my view, genuinely ambiguous. Most of the Court’s opinion is devoted to confirming half of that ambiguity by refuting Bryan’s various arguments that the statute clearly requires specific knowledge of the licensing requirement. Ante, at 192-199. The Court offers no real justification for its implicit conclusion that either (1) the statute unambiguously requires only general knowledge of illegality, or (2) ambiguously requiring only general knowledge is enough. Instead, the Court curiously falls back on “the traditional rule that ignorance of the law is no excuse” to conclude that “knowledge that the conduct is unlawful is all that is'required.” Ante, at 196. In my view, this case calls for the application of a different canon — “the familiar rule that, ‘where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.' ” Adamo Wrecking Co. v. United States, 434 U. S. 275, 284-285 (1978), quoting United States v. Bass, 404 U. S. 336, 348 (1971).

Title 18 U. S. C. § 922(a)(1)(A) makes it unlawful for any person to engage in the business of dealing in firearms without a federal license. That provision is enforced criminally through § 924(a)(1)(D), which imposes criminal penalties on whoever “willfully violates any other provision of this chapter.55 The word “willfully55 has a wide range of meanings, and “fits construction [is] often . . . influenced by its context.5 55 Ratzlaf v. United States, 510 U. S. 135, 141 (1994), quoting Spies v. United States, 317 U. S. 492, 497 (1943). In some contexts it connotes nothing more than “an act which is intentional, or knowing, or voluntary, as distinguished from accidental.55 United States v. Murdock, 290 U. S. 389, 394 (1933). In the present context, however, inasmuch as the preceding three subparagraphs of §924 specify a mens rea of “knowingly55 for other firearms offenses, see §§924(a)(l)(A)-(C), a “willful” violation under § 924(a)(1)(D) must require some mental state more culpable than mere intent to perform the forbidden act. The United States concedes (and the Court apparently agrees) that the violation is not “willful” unless the defendant knows in a general way that his conduct is unlawful. Brief for United States 7-9; ante, at 193 (“The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful”).

That concession takes this case beyond any useful application of the maxim that ignorance of the law is no excuse. Everyone agrees that § 924(a)(1)(D) requires some knowledge of the law; the only real question is which law? The Court’s answer is that knowledge of any law is enough — or, put another way, that the defendant must be ignorant of every law violated by his course of conduct to be innocent of willfully violating the licensing requirement. The Court points to no textual basis for that conclusion other than the notoriously malleable word “willfully” itself. Instead, it seems to fall back on a presumption (apparently derived from the rule that ignorance of the law is no excuse) that even where ignorance of the law is an excuse, that excuse should be construed as narrowly as the statutory language permits.

I do not believe that the Court’s approach makes sense of the statute that Congress enacted. I have no quarrel with the Court’s assertion that “willfully” in § 924(a)(1)(D) requires only “general” knowledge of illegality — in the sense that the defendant need not be able to recite chapter and verse from Title 18 of the United States Code. It is enough, in my view, if the defendant is generally aware that the actus reus punished by the statute — dealing in firearms without a license — is illegal. But the Court is willing to accept a mens rea so “general” that it is entirely divorced from the actus reus this statute was enacted to punish. That approach turns § 924(a)(1)(D) into a strange and unlikely creature. Bryan would be guilty of “willfully” dealing in firearms without a federal license even if, for example, he had never heard of the licensing requirement but was aware that he had violated the law by using straw purchasers or filing the serial numbers off the pistols. Ante, at 189, n. 8. The Court does not even limit (for there is no rational basis to limit) the universe of relevant laws to federal firearms statutes. Bryan would also be “act[ing] with an evil-meaning mind,” and hence presumably be guilty of “willfully” dealing in firearms without a license, if he knew that his street-corner transactions violated New York City’s business licensing or sales tax ordinances. (For that matter, it ought to suffice if Bryan knew that the car out of which he sold the guns was illegally double-parked, or if, in order to meet the appointed time for the sale, he intentionally violated Pennsylvania’s speed limit on the drive back from the gun purchase in Ohio.) Once we stop focusing on the conduct the defendant is actually charged with (i e., selling guns without a license), I see no principled way to determine what law the defendant must be conscious of violating. See, e. g., Lewis v. United States, 523 U. S. 155, 174-175 (1998) (Scalia, J., concurring in judgment) (pointing out a similar interpretive problem potentially raised by the Assimilative Crimes Act).

Congress is free, of course, to make criminal liability under one statute turn on knowledge of another, to use its firearms dealer statutes to encourage compliance with New York City’s tax collection efforts, and to put judges and juries through the kind of mental gymnastics described above. But these are strange results, and I would not lightly assume that Congress intended to make liability under a federal criminal statute depend so heavily upon the vagaries of local law — particularly local law dealing with completely unrelated subjects. If we must have a presumption in cases like this one, I think it would be more reasonable to presume that, when Congress makes ignorance of the law a defense to a criminal prohibition, it ordinarily means ignorance of the unlawfulness of the specific conduct punished by that criminal prohibition.

That is the meaning we have given the word “willfully” in other contexts where we have concluded it requires knowledge of the law. See, e. g., Ratzlaf, supra, at 149 (“To convict Ratzlaf of the crime with which he was charged,... the jury had to find he knew the structuring in which he engaged was unlawful”); Cheek v. United States, 498 U. S. 192, 201 (1991) (“[T]he standard for the statutory willfulness requirement is the ‘voluntary, intentional violation of a known legal duty.’ ... [T]he issue is whether the defendant knew of the duty purportedly imposed by the provision of the statute or regulation he is accused of violating”). The Court explains these cases on the ground that they involved “highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Ante, at 194. That is no explanation at all. The complexity of the tax and currency laws may explain why the Court interpreted “willful” to require some awareness of illegality, as opposed to merely “an act which is intentional, or knowing, or voluntary, as distinguished from accidental.” Murdock, 290 U. S., at 394. But it in no way justifies the distinction the Court seeks to draw today between knowledge of the law the defendant is actually charged with violating and knowledge of any law the defendant could conceivably be charged with violating. To protect the pure of heart, it is not necessary to forgive someone whose surreptitious laundering of drug money violates, unbeknownst to him, a technical currency statute. There, as here, regardless of how “complex” the violated statute may be, the defendant would have acted “with an evil-meaning mind.”

It seems to me likely that Congress had a presumption of offense-specific knowledge of illegality in mind when it enacted the provision here at issue. Another section of the Firearms Owners’ Protection Act, Pub. L. 99-308, 100 Stat. 449, prohibits licensed dealers from selling firearms to out-of-state residents unless they fully comply with the laws of both States. 18 U. S. C. § 922(b)(3). The provision goes on to state that all licensed dealers “shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States.” Ibid. Like the dealer-licensing provision at issue here, a violation of § 922(b)(3) is a criminal offense only if committed “willfully” within the meaning of § 924(a)(1)(D). The Court is quite correct that this provision does not establish beyond doubt that “willfully” requires knowledge of the particular prohibitions violated: the fact that knowledge (attributed knowledge) of those prohibitions will be sufficient does not demonstrate conclusively that knowledge of other prohibitions will not be sufficient. Ante, at 198-199. But though it does not demonstrate, it certainly suggests. To say that only willful violation of a certain law is criminal, but that knowledge of the existence of that law is presumed, fairly reflects, I think, a presumption that willful violation requires knowledge of the law violated.

If one had to choose, therefore, I think a presumption of statutory intent that is the opposite of the one the Court applies would be more reasonable. I would not, however, decide this case on the basis of any presumption at all. It is common ground that the statutory context here requires some awareness of the law for a § 924(a)(1)(D) conviction, but the statute is simply ambiguous, or silent, as to the precise contours of that mens rea requirement. In the face of that ambiguity, I would invoke the rule that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,'” United States v. Bass, 404 U. S., at 347, quoting Rewis v. United States, 401 U. S. 808, 812 (1971).

“The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820).

In our era of multiplying new federal crimes, there is more reason than ever to give this ancient canon of construction consistent application: by fostering uniformity in the interpretation of criminal statutes, it will reduce the occasions on which this Court will have to produce judicial havoc by resolving in defendants’ favor a Circuit conflict regarding the substantive elements of a federal crime, see, e. g., Bousley v. United States, 523 U. S. 614 (1998).

I respectfully dissent.

       “Sec. 901. (a) The Congress hereby finds and declares—
      “(1) that there is a widespread traffic in firearms moving in or otherwise affecting interstate or foreign commerce, and that the existing Federal controls over such traffic do not adequately enable the States to control this traffic within their own borders through the exercise of their police power;
      “(2) that the ease with which any person can acquire firearms other than a rifle or shotgun (including criminals, juveniles without the knowledge or consent of their parents or guardians, narcotics addicts, mental defectives, armed groups who would supplant the functions of duly constituted- public authorities, and others whose possession of such weapons is similarly contrary to the public interest) is a significant factor in the. prevalence of lawlessness and violent crime in the United States;
      “(3) that only through adequate Federal control over interstate and foreign commerce in these weapons, and over all persons engaging in the businesses of importing, manufacturing, or dealing in them, can this grave problem be properly dealt with, and effective State and local regulation of this traffic be made possible ....” 82 Stat. 225.

       82 Stat. 228. The current version of this provision, which is substantially the same as the 1968 version, is codified at 18 XJ. S. C. § 922(a)(1)(A). It states:
      “(a) It shall be unlawful—
      “(1) for any person—
      “(A) except a licensed importer, licensed manufacture!’, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.”

       “§924. Penalties
      “(a) Whoever violates any provision of this chapter . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 82 Stat. 233.

       “The Congress finds that—
      “(b)(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that ‘it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.’” lOOStat. 449.

       “Section 921 of title 18, United States Code, is amended—
      “(21) The term ‘engaged in the business’ means—
      “(C) as applied to a dealer in firearms, as defined in section 921 (a)(ll)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms ....” 100 Stat. 449-450.

       Title 18 U. S. C. § 924(a)(1) currently provides:
      “Except as otherwise provided in this subsection, subsection (b), (c), or (f) of this section, or in section 929, whoever—
      “(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
      “(B) knowingly violates subsection (a)(4), (f), (k), (r), (v), or (w) of section 922;

        "(C) knowingly imports or brings into the United States or any possession thereof any firearm or ammunition in violation of section 922(1); or
      "(D) willfully violates any other provision of this chapter,
      “shall be fined under this title, imprisoned not more than five years, or both”

       See n. 2, swpra.

       Why else would he make use of straw purchasers and assure them that he would shave the serial numbers off the guns? Moreover, the street comer sales are not consistent with a good-faith belief in the legality of the enterprise.

       Although the prohibition against unlicensed dealing in firearms is set forth in §922, see n. 2, supra, the criminal sanction is set forth in § 924(a)(1), see n. 6, supra.

       “KNOWLEDGE OF THE LAW
      “The Federal Firearms Statute which the Defendant is charged with, conspiracy to violate and with allegedly violated [sic], is a specific intent statute. You must accordingly find, beyond a reasonable doubt, that Defendant at all relevant times charged, acted with the knowledge that it was unlawful to engage in the business of firearms distribution lawfully purchased by a legally permissible transferee or gun purchaser.
      “[Y]ou must be persuaded that with the actual knowledge of the federal firearms licensing laws Defendant acted in knowing and intentional violation of them.” App. 17 (citing Ratzlaf v. United States, 510 U. S. 135 (1994)).

       App. 18-19.

       “The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose (Felton v. United States, 96 U. S. 699; Potter v. United States, 155 U. S. 438; Spurr v. United States, 174 U. S. 728); without justifiable excuse (Felton v. United States, supra; Williams v. People, 26 Colo. 272; 57 Pac. 701; People v. Jewell, 138 Mich 620; 101 N. W. 835; St. Louis, I. M. & S. Ry. Co. v. Batesville & W. Tel. Co., 80 Ark. 499; 97 S. W. 660; Clay v. State, 52 Tex. Cr. 555; 107 S. W. 1129); stubbornly, obstinately, perversely, Wales v. Miner, 89 Ind. 118, 127; Lynch v. Commonwealth, 131 Va. 762; 109 S. E. 427; Claus v. Chicago Gt. W Ry. Co., 136 Iowa 7; 111 N. W. 15; State v. Harwell, 129 N. C. 550; 40 S. E. 48. The word is also employed to characterize a thing done without ground for believing it is lawful (Roby v. Newton, 121 Ga. 679; 49 S. E. 694), or conduct marked by careless disregard whether or not one has the right so to act, United States v. Philadelphia & R. By. Co., 223 Fed. 207, 210; State v. Same, 129 Iowa 122; 105 N. W. 387; State v. Morgan, 136 N. C. 628; 48 S. E. 670.” 290 U. S., at 394-395.

       See, e. g., Heikkinen v. United States, 355 U. S. 273, 279 (1958) (“There can be no willful failure by a deportee, in the sense of § 20(c), to apply to, and identify, a country willing to receive him in the absence of evidence ... of a ‘bad purpose’ or ‘[non-]justifiab!e excuse,’ or the like.... [T]t cannot be said that he acted ‘willfully’ — i. e., with a ‘bad purpose’ or without ‘justifiable excuse’”); United States v. Murdock, 290 U. S. 389, 394 (1933) (“[W]hen used in a criminal statute [willfully] generally means an act done with a bad purpose”); Felton v. United States, 96 U. S. 699, 702 (1878) (“Doing or omitting to do a thing knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. 'The word “wilfully,” ’ says Chief Justice Shaw, ‘in the ordinary sense in which it is used in statutes, means not merely “voluntarily,” but with a bad purpose.’ 20 Pick. (Mass.) 220. ‘It is frequently understood,’ says Bishop, ‘as signifying an evil intent without justifiable excuse.’ Grim. Law, vol. i. sect. 428”); 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions ¶ 3A.01, p. 3A-18 (1997) (“ ‘Willfully’ means to act with knowledge that one’s conduct is unlawful and with the intent to do something the law forbids, that is to say with the bad purpose to disobey or to disregard the law”).

       In his opinion dissenting from the Court’s decision upholding the constitutionality of a. statute authorizing punishment for the knowing violation of an Interstate Commerce regulation, Justice Jackson wrote:
      “It is further suggested that a defendant is protected against indefiniteness because conviction is authorized only for knowing violations. The argument seems to be that the jury can find that defendant knowingly violated the regulation only if it finds that it knew the meaning of the regulation he was accused of violating. With the exception of Screws v. United States, 325 U. S. 91, which rests on a very particularized basis, the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law. I do not suppose the Court intends to suggest that if petitioner knew nothing of the. existence of such a regulation its ignorance would constitute a defense.” Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 345 (1952).

         Liparota v. United States, 471 U. S. 419 (1985), was such a case. We there concluded that both the term “knowing” in 7 U. S. G. § 2024(c) and the term “knowingly” in § 2024(b)(1) literally referred to knowledge of the law as well as knowledge of the relevant facts. See id., at 428-430.

       Justice Jackson’s translation of the terms mens rea and actus reus is found in his opinion for the Court in Morissette v. United States, 342 U. S. 246, 251 (1952).

       Even in tax eases, we have not always required this heightened mens rea. In United States v. Pomponio, 429 U. S. 10 (1976) (per curiam), for example, the jury was instructed that a willful act is one done “with [the] bad purpose either to disobey or to disregard the law.” Id., at 11. We approved of this instruction, concluding that “[t]he trial judge . . . adequately instructed the jury on willfulness.” Id., at 13.

       As we stated in Cheek v. United States, 498 U. S. 192, 199-200 (1991):
      “The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term ‘willfully’ as used in the federal criminal tax statutes as carving out an exception to the traditional rule [that every person is presumed to know the law]. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.”

       See Bates v. United States, 522 U. S. 23, 31, n. 6 (1997) (noting that Ratzlaf s holding was based on the “particular statutory context of currency structuring”); Ratzlaf, 510 U. S., at 149 (Court’s holding based on “particular contex[tj” of currency structuring statute).

         Id., at 144-145 (“[C]urrency structuring is not inevitably nefarious-Nor is a person who structures a currency transaction invariably motivated by a desire to keep the Government in the dark”; Government's construction of the statute would criminalize apparently innocent activity); Cheek, 498 U. S., at 205 (“[I]n *our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law,’ and “‘[i]t is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.”’ United States v. Bishop, 412 U. S. 346, 360-361 (1973) (quoting Spies v. United States, 317 U. S. 492, 496 (1943))”); Murdock, 290 U. S., at 396 (“Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct”21

        Cheek, 498 U. S., at 200; see also Ratzlaf, 510 U. S., at 149 (noting the “venerable principle that ignorance of the law generally is no defense to a criminal charge,” but concluding that Congress intended otherwise in the “particular contex[t]” of the currency structuring statute).

       Even before Ratzlaf was decided, then-Chief Judge Breyer explained why there was a need for specificity under those statutes that is inapplicable when there is no danger of conviction of a defendant with an innocent state of mind. He wrote:
      “I believe that criminal prosecutions for ‘currency law* violations, of the sort at issue here, very much resemble criminal prosecutions for tax law violations. Compare 26 TJ. S. C. §§60501, 7203 with 31 TJ. S. C. §§5322, 5324. Both sets of laws are technical; and both sets of laws sometimes criminalize conduct that would not strike an ordinary citizen as immoral or likely unlawful. Thus, both sets of laws may lead to the unfair result of criminally prosecuting individuals who subjectively and honestly believe they have not acted criminally. Cheek v. United States, 498 U. S. 192 ... (1991), sets forth a legal standard that, by requiring proof that the defendant was subjectively aware of the duty at issue, would avoid such unfair results.” United States v. Aversa, 984 F. 2d 493, 502 (CA1 1993) (concurring opinion).
      He therefore concluded that the “same standards should apply in both” the tax eases and in eases such as Ratzlaf. 984 F. 2d, at 503.

       Moreover, requiring only knowledge that the conduct is unlawful is fully consistent with the purpose of FOPA, as FOPA was enacted to protect law-abiding citizens who might inadvertently violate the law. See n. 4, supra; see also United States v. Andrade, 136 F. 3d 104, 108-109 (CA1 1998).

       For example, Representative Hughes, a staunch opponent of the bill, stated that the willfulness requirement would “make it next to impossible to convict dealers, particularly those who engage in business without acquiring a license, because the prosecution would have to show that the dealer was personally aware of every detail of the law, and that he made a conscious decision to violate the law.” 132 Gong. Rec. 6876 (1986). Even petitioner's amicus acknowledges that this statement was “undoubtedly an exaggeration.” Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 14.

       See also Andrade, 135 F. 3d, at 108-109.

       See, e.g., Perri v. Department of the Treasury, 637 F. 2d 1332, 1336 (CA9 1981); Stein’s Inc. v. Blumenthal, 649 F. 2d 463, 467-468 (CA7 1980).

        Rich v. United States, 383 F. Supp. 797, 800 (SD Ohio 1974).

         Lewin v. Blumenthal, 590 F. 2d 268, 269 (CA8 1979); Fin & Feather Sport Shop v. United States Treasury Department, 481 F. Supp. 800, 807 (Neb. 1979).

         Prino v. Simon, 606 F. 2d 449, 451 (CA4 1979) (internal quotation marks omitted); see also Stein’s, 649 F. 2d, at 467 (“[Ilf a person 1) intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or 2) acts with careless disregard of statutory requirements, the violation is willful” (internal quotation marks omitted)).

        Perri, 637 F. 2d, at 1336 (“The district court found Perri knew a straw-man transaction would violate the Act”); Stein’s, 649 F. 2d, at 468 (“The record shows that the plaintiff’s agents were instructed on the requirements of the law and acknowledged an understanding of the Secretary’s regulations. Nevertheless, and despite repeated warnings from the Secretary, violations continued to occur” (footnote omitted)); Powers v. Bureau of Alcohol, Tobacco and Firearms, 505 F. Supp. 695, 698 (ND Fla. 1980) (“Bureau representatives inspected Powers August 31, 1976. They pointed out his many violations, gave him a copy of the regulations, thoroughly explained his obligations, and gave him a pamphlet explaining his obligations. As of that date Powers knew his obligations”); Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms, 448 F. Supp. 409, 415 (MD Pa. 1977) (“[A]t the formal administrative hearing petitioner admitted on the stand under oath that he was aware of the specific legal obligation at issue”); Mayesh v. Schultz, 58 F. R. D. 537, 540 (SD Ill. 1973) (“The uncontroverted evidence shows clearly that plaintiff was aware of the above holding period requirements. Mr. Mayesh had been previously advised on the requirements under Illinois law, and he dearly acknowledged that he was aware of them”); McLemore v. United States Treasury Department, 317 F. Supp. 1077, 1078 (ND Fla. 1970) (finding that both the owner of the pawnshop, as well as his employees, had knowledge of the law).

       In Mayesh, for example, the court stated:
      “The uncontroverted evidence shows clearly that plaintiff was aware of the above holding period requirements. Mr. Mayesh had been previously advised on the requirements under Illinois law, and he clearly acknowledged that he was aware of them.... Since the material facts are undisputed, as a matter of law the plaintiff clearly and knowingly violated the Illinois holding provisions . . . , and hence, 18 U. S. C. § 922(b)(2). This court can only consider such action to have been ‘wilful’ as a matter of law. There is no basis for trial of any disputed facts in this connection. This is sufficient to justify refusal of license renewal.” 58 F. R. D., at 540. See also, e. g., Perri, 637 F. 2d, at 1336 (stating that when a dealer understands the requirements of the law, but knowingly fails to follow them or is in different to them, willfulness “is established,” i. e., is satisfied); Stein’s, 649 F. 2d, at 468 (“Evidence of repeated violations with knowledge of the law’s requirements has been held sufficient to establish willfulness” (emphasis added)); McLemore, 317 F. Supp., at 1078-1079.

       18 U.S.C.§ 922(b)(3).

       Petitioner also argues that the statutory language — ‘‘willfully violates any other provision of this chapter” — indicates a congressional intent to attach liability only when a defendant possesses specific knowledge of the “provision[s] of [the] chapter.” We rejected a similar argument in United States v. International Minerals & Chemical Corp., 402 U. S. 558 (1971). Although that case involved the word “knowingly” (in the phrase “knowingly violates any such regulation”), the response is the same:
      “We . . . see no reason why the word ‘regulations’ [or the phrase ‘any other provision of this chapter’] should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse ....” Id., at 562.


author: Justice Scalia

text:
    PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al. v. YESKEY
    No. 97-634.
    Argued April 28, 1998
    Decided June 15, 1998
    Scalia, J., delivered the opinion for a unanimous Court.

      Paul A. Tufano argued the cause for petitioners. With him on the briefs was Syndi L. Guido.

      Donald Specter argued the cause for respondent. With him on the brief were Eve H. Cervantez and Arlene B. Mayerson.

      Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Paul R. Q. Wolfson, Jessica Dunsay Silver, Linda E. Thome, and Seth M. Galanter

      Briefs of amid curiae urging reversal were filed for the State of Nevada et al. by Frankie Sue Del Papa, Attorney General of Nevada, and Anne B. Catheart, Senior Deputy Attorney General, Betty D. Montgomr ery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Elise Porter and Todd R. Marti, Assistant Attorneys General, John M. Ferren, Corporation Counsel of the District of Columbia, and Gus F. Diaz, Acting Attorney General of Guam, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A Norton of Colorado, Robert A Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr,, of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Philip T. McLaughlin of New Hampshire, Peter Vemiero of New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heit-kamp of North Dakota, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark W. Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Mark L. Earley of "Virginia, Julio A Brady of the Virgin Islands, and William U. Hill of Wyoming; for the Council of State Governments et al. by Richard Ruda and James J. Crowley; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Republican Caucus of the Pennsylvania House of Representatives by John P. Krill, Jr., and David R. Fine.

      Briefs of amid curiae urging affirmance were filed for the National Association of Protection and Advocacy Systems et al. by Steven J. Schwartz, James R. Pingeon, and Stephen F. Hanlon; and for the National Prison Project of the ACLU Foundation et al. by Steven R. Shapiro, David M. Porter, Marjorie Rifkin, and Elizabeth, Alexander.

      Briefs of amici curiae were filed for Adapt et al. by Stephen F. Gold; and for the National Advisory Group for Justice et al. by Michael Churchill.

   Justice Scalia

delivered the opinion of the Court.

The question before us is whether Title II of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, 42 U. S. C. § 12131 et seq., which prohibits a “public entity” from discriminating against a “qualified individual with a disability” on account of that individual's disability, see § 12132, covers inmates in state prisons. Respondent Ronald Yeskey was such an inmate, sentenced in May 1994 to serve 18 to 36 months in a Pennsylvania correctional facility. The sentencing court recommended that he be placed in Pennsylvania’s Motivational Boot Camp for first-time offenders, the successful completion of which would have led to his release on parole in just six months. See Pa. Stat. Ann., Tit. 61, § 1121 et seq. (Purdon Supp. 1998). Because of his medical history of hypertension, however, he was refused admission. He filed this suit against petitioners, the Commonwealth of Pennsylvania’s Department of Corrections and several department officials, alleging that his exclusion from the Boot Camp violated the ADA. The District Court dismissed for failure to state a claim, Fed. Rule Civ. Proc. 12(b)(6), holding the ADA inapplicable to inmates in state prisons; the Third Circuit reversed, 118 F. 3d 168 (1997); we granted certiorari, 522 U. S. 1086 (1998).

Petitioners argue that state prisoners are not covered by the ADA for the same reason we held in Gregory v. Ashcroft, 501 U. S. 452 (1991), that state judges were not covered by the Age Discrimination in Employment Act of 1967 (ADE A), 29 U. S. C. §621 et seq. Gregory relied on the canon of construction that absent an “unmistakably clear” expression of intent to “alter the usual constitutional balance between the States and the Federal Government,” we will interpret a statute to preserve rather than destroy the States’ “substantial sovereign powers.” 501 U. S., at 460-461 (citations and internal quotation marks omitted). It may well be that exercising ultimate control over the management of state prisons, like establishing the qualifications of state government officials, is a traditional and essential state function subject to the plain-statement rule of Gregory. “One of the primary functions of government,” we have said, “is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task.” Procunier v. Martinez, 416 U. S. 396, 412 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U. S. 401, 414 (1989). “It is difficult to imagine an activity in which a State has a stronger interest,” Preiser v. Rodriguez, 411 U. S. 475, 491 (1973).

Assuming, without deciding, that the plain-statement rule does govern application of the ADA to the administration of state prisons, we think the requirement of the rule is amply met: the statute’s language unmistakably includes State prisons and prisoners within its coverage. The situation here is not comparable to that in Gregory. There, although the ADEA plainly covered state employees, it contained an exception for “'appointee[s] on the policymaking level’” which made it impossible for us to “conclude that the statute plainly eover[ed] appointed state judges.” 501 U. S., at 467. Here, the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt. Title II of the ADA provides: State prisons fall squarely within the statutory definition of “public entity,” which includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” § 12131(1)(B).

“Subject to the provisions of this subehapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U. S. C. § 12132.

Petitioners contend that the phrase “benefits of the services, programs, or activities of a public entity,” § 12132, creates an ambiguity, because state prisons do not provide prisoners with “benefits” of “programs, services, or activities” as those terms are ordinarily understood. We disagree. Modern prisons provide inmates with many recreational “activities,” medical “services,” and educational and vocational “programs,” all of which at least theoretically “benefit” the prisoners (and any of which disabled prisoners could be “excluded from participation in”). See Block v. Rutherford, 468 U. S. 576, 580 (1984) (referring to “contact visitation program”); Hudson v. Palmer, 468 U. S. 517, 552 (1984) (discussing “rehabilitative programs and services”); Olim v. Wakinekona, 461 U. S. 238, 246 (1983) (referring to “appropriate correctional programs for all offenders”), indeed, the statute establishing the Motivational Boot Camp at issue in this very case refers to it as a “program.” Pa. Stat. Ann., Tit. 61, § 1123 (Purdon Supp. 1998). The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.

We also disagree with petitioners’ contention that the term “qualified individual with a disability” is ambiguous insofar as concerns its application to state prisoners. The statute defines the term to include anyone with a disability

“who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U. S. C. § 12131(2).

Petitioners argue that the words “eligibility” and “participation” imply voluntariness on the part of an applicant who seeks a benefit from the State, and thus do not connote prisoners who are being held against their will. This is wrong on two counts: First, because the words do not connote vol-untariness. See, e. g., Webster’s New International Dictionary 831 (2d ed. 1949) (“eligible”: “Fitted or qualified to be chosen or elected; legally or morally suitable; as, an eligible candidate”); id,, at 1782 (“participate”: “To have a share in common with others; to partake; share, as in a debate”). While “eligible” individuals “participate” voluntarily in many programs, services, and activities, there are others for which they are “eligible” in which “participation” is mandatory. A drug addict convicted of drug possession, for example, might, as part of his sentence, be required to “participate” in a drug treatment program for which only addicts are “eligible.” And secondly, even if the words did connote voluntariness, it would still not be true that all prison “services,” “programs,” and “activities” are excluded from the ADA because participation in them is not voluntary. The prison law library, for example, is a service (and the use of it an activity), which prisoners are free to take or leave. Cf. Gabel v. Lynaugh, 835 F. 2d 124, 125, n. 1 (CA5 1988) (per curiam) (“pro se civil rights litigation has become a recreational activity for state prisoners”). In the very ease at hand, the governing law makes it clear that participation in the Boot Camp program is voluntary. See Pa. Stat. Ann., Tit. 61, § 1126(a) (Purdon Supp. 1998) (“An eligible inmate may make an application to the motivational boot camp selection committee for permission to participate in the motivational boot camp program”); § 1126(c) (“[c]onditio[n]” of “participation]” is that applicant “agree to be bound by” certain “terms and conditions”).

Finally, petitioners point out that the statute’s statement of findings and purpose, 42 U. S. C. § 12101, does not mention prisons and prisoners. That is perhaps questionable, since the provision’s reference to discrimination “in such critical areas as . . . institutionalization,”' § 12101(a)(3), can be thought to include penal institutions. But assuming it to be true, and assuming further that it proves, as petitioners contend, that Congress did not “envisio[n] that the ADA would be applied to state prisoners,” Brief for Petitioners 13-14, in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a statute can be “‘applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’ ” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985) (citation omitted).

Our conclusion that the text of the ADA is not ambiguous causes us also to reject petitioners’ appeal to the doctrine of constitutional doubt, which requires that we interpret statutes to avoid “grave and doubtful constitutional questions,” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). That doctrine enters in only “where a statute is susceptible of two constructions,” ibid. And for the same reason we disregard petitioners’ invocation of the statute’s title, “Public Services,” 104 Stat. 337. “[T]he title of a statute... cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or phrase.” Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947).

We do not address another issue presented by petitioners: whether application of the ADA to state prisons is a constitutional exercise of Congress’s power under either the Commerce Clause, compare Printz v. United States, 521 U. S. 898 (1997), with Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507 (1997). Petitioners raise this question in their brief, see Brief for Petitioners 22-23, but it was addressed by neither the District Court nor the Court of Appeals, where petitioners raised only the Gregory plain-statement issue. “Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them.” Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970) (citations omitted). See also Dothard v. Rawlinson, 433 U. S. 321, 323, n. 1 (1977); Duignan v. United States, 274 U. S. 195, 200 (1927). We decline to do so here.

* * *

Because the plain text of Title II of the ADA unambiguously extends to state prison inmates, the judgment of the Court of Appeals is affirmed.

It is so ordered.


author: Justice Scalia Chief Justice Rehnquist, Justice Stevens,

text:
    AMERICAN TELEPHONE & TELEGRAPH CO. v. CENTRAL OFFICE TELEPHONE, INC.
    No. 97-679.
    Argued March 23, 1998
    Decided June 15, 1998

      Scaua, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Soutek, Thomas, Ginsburg, and Breyeb, JJ., joined. Rehnquist, C. X, filed a concurring opinion, post, p. 228. Stevens, J., filed a dissenting opinion, post, p. 231. O’Connor, J., took no part in the consideration or decision of the case.

      David W. Carpenter argued the cause for petitioner. With him on the briefs were Carter G. Phillips, Thomas W. Merrill, Peter D. Keisler, and Marc E. Manly.

      Bruce M. Hall argued the cause and filed a brief for respondent.

        Gary M. Epstein, Maureen E. Mahoney, Teresa D. Baer, Walter H. Alford, William B. Barfield, M. Robert Sutherland, and Michael J. Zpevak filed a brief for the United States Telephone Association et al. as amici curiae urging reversal.

        Henry D. Levine, Ellen G. Block, and James S. Blaszak filed a brief for the Ad Hoe Telecommunications Users Committee et al. as amici curiae.

   Justice Scalia

delivered the opinion of the Court.

Respondent Central Office Telephone, Inc. (COT), a reseller of long-distance communications services, sued petitioner AT&T, a provider of long-distance communications services, under state law for breach of contract and tortious interference with contract. Petitioner is regulated as a common carrier under the Communications Act of 1984, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq. The issue before us is whether the federal filed-tariff requirements of the Communications Act pre-empt respondent's state-law claims.

I

Respondent purchases “bulk” long-distance services— volume-discounted services designed for large customers— from long-distance providers, and resells them to smaller customers. Like many other resellers in the telecommunications industry, respondent does not own or operate facilities of its own; it is known as a “switehless reseller,” which is the industry nomenclature for arbitrageur. Of course respondent passes along only a portion of the bulk-purchase discount to its aggregated customers, and retains the remaining discount as profit.

Petitioner provides long-distance services and, as a common carrier under the Communications Act, § 153(h), must observe certain substantive requirements imposed by that law. Section 203 of the Act requires that common carriers file “schedules” (also known as “tariffs”) containing all their “charges” for interstate services and all “classifications, practices, and regulations affecting such charges.” § 203(a). The Federal Communications Commission (FCC), which is the agency responsible for enforcing the Act, requires carriers to sell long-distance services to resellers such as respondent under the same rates, terms, and conditions as apply to other customers.

Prior to 1989, petitioner had developed a type of long-distance service known as Software Defined Network (SDN), designed to meet the needs of large companies with offices in multiple locations. SDN established a “virtual private network” that allowed employees in different locations to communicate easily. For example, an employee in Washington could call a co-worker in Denver simply by dialing a four-digit extension. SDN customers, in exchange for a commitment to purchase large volumes of long-distance communication time, received this service at a rate much below what it would otherwise cost.

Several changes to SDN in 1989 made the service extremely attractive to resellers, such as respondent, who aggregate smaller customers. Petitioner developed the capability to allow customers to use ordinary (“switched access”) telephone lines to connect locations to their SDN networks. Previously, locations had to be connected over special “dedicated access” lines, which are direct lines from a location’s telephone system to petitioner’s long-distance network, bypassing the switches of the local exchange carrier. Dedicated access involves large fixed costs, so it is cost effective only when a location originates a large volume of calls. Switched access, in contrast, does not entail additional high fixed costs, so it is better suited to small users and hence to resellers. Petitioner also instituted two pricing promotions for SDN in 1989: additional discounts from the basic SDN rates for customers making large usage and duration commitments, and waiver of installation charges for customers making multiyear commitments (subject to penalties for early termination). Petitioner also added a new billing option. In addition to network billing, whereby petitioner prepares a single bill that applies the tariffed rate to all usage at all locations, petitioner started to offer multilocation billing (MLB), which allows the SDN volume discounts to be apportioned between an SDN customer and individual locations on its network, with the proportion being chosen by the customer. Under this option, petitioner sends bills directly to the customer’s individual locations (which, in the case of resellers, means to the reseller’s customers) but the customer (or reseller) remains responsible for all payments. The tariff provides, however, that petitioner is not responsible for the allocation of charges. See AT&T Tariff F’CC No. 1, §6.2.4 (1986), App. to Brief for Petitioner 24a.

Attracted by these changes, in October 1989, respondent approached petitioner regarding its possible purchase of SDN. LaDonna Kisor, a sales representative in petitioner’s Portland, Oregon, office, described the service and gave respondent literature on SDN. She predicted that petitioner could establish an initial SDN network for respondent in four to five months, and could thereafter add new locations within 80 days of receiving an order. Respondent subscribed to a tariffed switched-access SDN plan under which the up-front installation charges would be waived and respondent would receive a 17% to 20% discount off basic SDN rates in exchange for a 4-year commitment to purchase two million minutes of service annually. Respondent also requested MLB. Petitioner confirmed respondent’s order, stating that respondent would obtain SDN “ ‘pursuant to the rates, terms and conditions in AT&T’s [PCC Tariff No. 1],’ ” and that the provisions of the tariff, “ ‘including limitations on AT&T’s liabilities, shall govern your and AT&T’s obligations and liabilities with respect to the service and options you have selected.’” Brief for Petitioner 14. Respondent accepted these terms in writing on October 30,1989.

By February 1990, it had become apparent that the demand for SDN exceeded petitioner’s expectations — largely because of the switehless resellers attracted to the service. Petitioner could not fill the volumes of switched-access orders as rapidly as dedicated access orders, or as quickly as petitioner’s personnel had predicted. Accordingly, Ms. Kisor notified respondent that it would take up to 90 days to add new locations after the initial SDN was established. She suggested placing respondent’s customers with another AT&T service, the Multiloeation Calling Plan (MLCP), until they could be placed on SDN. Respondent agreed to this, and ordered MLCP. Again, respondent signed a letter confirming that MLCP “ ‘is provided under the terms and conditions stated in AT&T’s Tariff F. C. C. Nos. 1 and 2.’ ” Brief for Appellant in Nos. 94-36116, 94-36156 (CA9), p. 15.

Ms. Kisor informed respondent that its initial SDN network was functioning in April 1990. At that point, respondent elected to increase to a larger SDN volume commitment in order to qualify, for a larger discount. In placing this order, respondent signed a form stating that the SDN service ‘“WILL BE GOVERNED BY THE RATES AND TERMS AND CONDITIONS IN THE APPROPRIATE AT&T TARIFFS.’” Brief for Petitioner 14-15. Respondent then began reselling SDN to its own customers and placing orders with petitioner that required petitioner to treat respondent’s customers as if they were new locations on a corporate SDN.

Almost from the outset, respondent experienced problems with the network, including delays in provisioning (the filling of orders) and in billing. An additional billing problem was especially damaging to respondent: respondent’s customers received bills reflecting 100% of the discount instead of the 50% respondent selected. These problems continued, and in October 1990, they led respondent to switch to network billing. Although respondent continued to resell SDN, it was ultimately unable to meet its usage commitment for the first period in which it was applicable. In September 1992, respondent notified petitioner that it was terminating its SDN service effective September 30,1992, with 18 months remaining on its contract.

Meanwhile, on November 27, 1991, respondent had filed suit against petitioner in the United States District Court for the District of Oregon. The complaint contained a variety of claims, none of which arose under the Communications Act, and ultimately two state-law claims went to trial: (1) breach of contract (including breach of an implied covenant of good faith and fair dealing); and (2) tortious interference with contractual relations (viz., respondent’s contracts with its customers). Respondent’s state-law claims rested on the allegation that its contracts with petitioner were not limited by petitioner’s tariff but also included certain understandings respondent’s president derived from reading petitioner’s brochures and talking with its representatives. According to respondent, petitioner promised various service, provisioning, and billing options in addition to those set forth in the tariff. Respondent also claimed that petitioner violated its state-law implied duty of good faith and fair dealing by taking actions that undermined the purpose of the contract for respondent, which was to purchase SDN services for resale at a profit. The tortious-interference claim was derivative of the contract claim. Respondent asserted that, because respondent promised certain benefits of SDN to its customers, and because petitioner provided competing services, any intentional violation of petitioner’s contractual duties constituted tortious-interference with respondent’s relationship with its customers. Respondent also asserted that, since petitioner’s conduct was willful, consequential damages were available under the terms of the tariff. Petitioner filed a counterclaim to recover $200,000 in unpaid tariffed charges from April to October 1990, and to obtain the termination charges that respondent did not pay in 1992.

Throughout the proceedings in District Court, petitioner argued that respondent’s state-law contract and tort claims were pre-empted by the filed-tariff requirements of §203 of the Act. The Magistrate Judge rejected this argument and instructed the jury to consider not only the written subscription agreements, but also any statements made or documents furnished before the parties signed the agreements “ ‘if you find that the parties intended that those statements or written materials form part of their agreements.’ ” Brief for Petitioner 18. The Magistrate Judge also instructed the jury that it could not find for respondent on its contract claims unless it found that petitioner engaged in willful misconduct. He declined to instruct on punitive damages for the tortious-interference claim. The jury found for respondent on its state-law claims, rejected petitioner’s counterclaim, and awarded respondent $13 million in lost profits. The Magistrate Judge reduced the judgment to $1.154 million, which represented.the lost profits respondent claimed during the period before it canceled SDN on September 30, 1992; he found that there was no competent evidence for lost profits after that date. The Court of Appeals, over a dissent by Judge Brunetti, affirmed the judgment but reversed the Magistrate Judge’s failure to instruct on punitive damages and remanded for a trial on that aspect of the case. 108 F. 3d 981 (CA9 1997). We granted certiorari to determine whether the federal filed-rate requirements of § 203 pre-empt respondent’s claims. 522 U. S. 1024 (1997).

1 — t

Section 203(a) of the Communications Act requires every common carrier to file with the FCC “schedules,” i e., tariffs, “showing all charges” and “showing the classifications, practices, and regulations affecting such charges.” 47 U. S. C. § 203(a). Section 203(c) makes it unlawful for a carrier to “extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule.” These provisions are modeled after similar provisions of the Interstate Commerce Act (ICA) and share its goal of preventing unreasonable and discriminatory charges. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 229-230 (1994). Accordingly, the century-old “filed rate doctrine” associated with the ICA tariff provisions applies to the Communications Act as well. See id., at 229-231; Arkansas Louisiana Gas Co. v. Hall, 453 U. S. 571, 577 (1981); cf. United States Nav. Co. v. Cunard S. S. Co., 284 U. S. 474, 481 (1932). In Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (1915), we described the basic contours of the filed rate doctrine under the ICA:

“Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination.”

Thus, even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff. Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 653 (1913).

While the filed rate doctrine may seem harsh in some circumstances, see, e. g., Maislin Industries, U.S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 130-131 (1990), its strict application is necessary to “prevent carriers from intentionally ‘misquoting’ rates to shippers as a means of offering them rebates or discounts,” the very evil the filing requirement seeks to prevent. Id., at 127. Regardless of the carrier’s motive — whether it seeks to benefit or harm a particular customer — the policy of nondiseriminatory rates is violated when similarly situated customers pay different rates for the same services. It is that antidiseriminatory policy which lies at “the heart of the common-carrier section of the Communications Act.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., supra, at 229.

The Ninth Circuit thought the filed rate doctrine inapplicable “[bjeeause this ease does not involve rates or rate-setting, but rather involves the provisioning of services and billing.” 108 F. 3d, at 990. Rates, however, do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for excessive rates can be couched as a claim for inadequate services and vice versa. “If ‘discrimination in charges’ does not include non-price features, then the carrier could defeat the broad purpose of the statute by the simple expedient of providing an additional benefit at no additional charge.... An unreasonable ‘discrimination in charges,’ that is, can come in the form of a lower price for an equivalent service or in the form of an enhanced service for an equivalent price.” Competitive Telecommunications Assn. v. FCC, 998 F. 2d 1058, 1062 (CADC 1993). The Communications Act recognizes this when it requires the filed tariff to show not only “charges,” but also “the classifications, practices, and regulations affecting such charges,” 47 U. S. C. § 203(a); and when it makes it unlawffd to “extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges” except those set forth in the tariff, § 203(c).

Unsurprisingly, the cases decided under the ICA make it clear that discriminatory “privileges” come in many guises, and are not limited to discounted rates. “[A] preference or rebate is the necessary result of every violation of [the analog to § 203(c) in the ICA] where the carrier renders or pays for a service not covered by the prescribed tariffs.” United States v. Wabash R. Co., 321 U. S. 403, 412-413 (1944). In Chicago & Alton R. Co. v. Kirby, 225 U. S. 155 (1912), we rejected a shipper’s breach-of-contract claim against a railroad for failure to ship a carload of race horses by a particularly fast train. We held that the contract was invalid as a matter of law because the carrier’s tariffs “did not provide for an expedited service, nor for transportation by any particular train,” and therefore the shipper received “an undue advantage . . . that is not one open to others in the same situation.” Id., at 163,165. Similarly, in Davis v. Cornwell, 264 U. S. 560 (1924), we invalidated the carrier’s agreement to provide the shipper with a number of railroad cars on a specified day; such a special advantage, we said, “is illegal, when not provided for in the tariff.” Id., at 562. See also Kansas City Southern R. Co. v. Carl, supra, at 653; Wight v. United States, 167 U. S. 512, 517-518 (1897); I. Lake, Discrimination by Railroads and Other Public Utilities 310-315 (1947).

Ill

The Ninth Circuit distinguished the Court’s filed rate eases involving claims for special services on the ground that the services at issue there “should have been included in the tariff and made available to all” because “the customer would have been expected to pay a higher rate” for those services. 108 F. 3d, at 989, n. 9. But that is precisely the case here. Indeed, the additional services and guarantees that respondent claims it was entitled to by virtue of Ms. Kisor’s representations and petitioner’s sales brochures— viz., faster provisioning, the allocation of charges through multiloeation billing, and various matters relating to deposits, calling cards, and service support, see 108 F. 3d, at 987-988—all pertain to subjects that are specifically addressed by the filed tariff. See AT&T Tariff FCC No. 1, §2.5.10 (provisioning of orders); §6.2.4 (allocation of charges); §2.5.6 (deposits); §2.5.12.B (calling cards); § 6.2.5 (service supports).

The Ninth Circuit agreed that all of respondent’s claims except those relating to provisioning and billing would be pre-empted if the filed rate doctrine applied. 108 F. 3d, at 990. But even provisioning and billing are, in the relevant sense, “covered” by the tariff. For example, whereas respondent asks to enforce a guarantee that orders would be provisioned within 30 to 90 days, the tariff leaves it up to petitioner to “establish] and confir[m]” a due date for provisioning, requires that petitioner merely make “every reasonable effort” to meet that due date, and if it fails gives the customer no recourse except to “cancel the order without penalty or payment of nonrecurring charges.” § 2.5.10(B). Faster, guaranteed provisioning of orders for the same rate is certainly a privilege within the meaning of 47 U. S. C. § 203(c) and the filed rate doctrine. Cf. Chicago & Alton R. Co. v. Kirby, supra, at 163 (refusing to enforce promise for faster, guaranteed service not included in the tariff). As for billing, whereas respondent claims that, pursuant to the MLB option, petitioner promised to allocate usage and charges accurately among respondent’s customers, the tariff provides that petitioner “will not allocate . . . usage or charges” among the locations on the customer’s network and “is not responsible for the way that the Customer may allocate usage or charges.” AT&T Tariff FCC No. 1, § 6.2.4. Any assurance by petitioner that it would allocate usage and charges and take responsibility for the task would have been in flat contradiction of the tariff. See Chesapeake & Ohio R. Co. v. Westinghouse, Church, Kerr & Co., 270 U. S. 260, 266 (1926).

The Ninth Circuit distinguished respondent’s claims from those in our filed-rate cases involving special services in one other respect: according to respondent, the “special services” that it sought were provided by petitioner, without charge, to other customers, 108 F. 3d, at 989, n. 9. Even if that were so, the claim for these services would still be pre-empted under the filed rate doctrine. To the extent respondent is asserting discriminatory treatment, its remedy is to bring suit under §202 of the Communications Act. To the extent petitioner is claiming that its own claims for special services are not really special because other companies get the same preferences, “that would only tend to show that the practice was unlawful [with regard to] the others as well.” United States v. Wabash R. Co., supra, at 413. Because respondent asks for privileges not included in the tariff, its state-law claims are barred in either case.

IV

Our analysis applies with equal force to respondent’s tortious-interference claim because that is wholly derivative of the contract claim for additional and better services. Respondent contended that the tort claim was based on “AT&T’s refusal to provide [respondent] with certain types of service” and the Magistrate Judge agreed, noting that “ ‘the claims in this case, even the tort claim,... stem from the alleged failure of AT&T to comply with its contractual relationship.’” Brief for Appellant in Nos. 94-36116, 94-36156 (CA9), p. 33. Respondent can no more obtain unlawful preferences under the cloak of a tort claim than it can by contract. “The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.” Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156, 163 (1922); see also Maislin, 497 U. S., at 126.

The saving clause of the Communications Act, §414, contrary to respondent’s reading of it, does not dictate a different result. Section 414 copies the saving clause of the ICA, and we have long held that the latter preserves only those rights that are not inconsistent with the statutory filed-tariff requirements. Adams Express Co. v. Croninger, 226 U. S. 491, 507 (1913). A claim for services that constitute unlawful preferences or that directly conflict with the tariff — the basis for both the tort and contract claims here — cannot be “saved” under §414. “Th[e saving] clause... cannot in reason be construed as continuing in [customers] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.” Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 446 (1907).

Finally, we reject respondent’s argument that, even if the tariff exclusively governs the parties' relationship, the relief awarded is consistent with the tariff, since AT&T Tariff FCC No. 1, §2.3.1 provides that petitioner’s “liability, if any, for its willful misconduct is not limited by this tariff.” Respondent reasons that, because the jury found that petitioner engaged in willful misconduct, the verdict does not conflict with the tariff. Section 2.3.1, however, cannot be construed to do what the parties have no power to do. It removes only those limitations upon liability imposed by the tariff, not those imposed by law. It is the Communications Act that renders the promise of preferences unenforceable. The tariff can no more exempt the broken promise of preference that is willful than it can the broken promise of preference that is unintentional. (In fact, perversely enough, the willful breach displays a greater, if belated, attempt to comply with the law.)

* * *

Because respondent’s state-law claims are barred by the filed rate doctrine, we reverse the judgment of the Ninth Circuit.

It is so ordered.

Justice O’Connor took no part in the consideration or decision of this ease.

Chief Justice Rehnquist,

concurring.

The Court concludes that respondent’s tortious interference claim is “wholly derivative of the contract elaim” and therefore barred by the filed rate doetrine. The Court accepts the Magistrate Judge’s finding to that effect, ante, at 226, and I agree: The acts of tortious interference asserted against AT&T amount to no more than an intentional refusal to provide services to respondent in an amount or manner contrary to the filed tariff.

I write separately to note that this finding is necessary to the conclusion that respondent’s state-law tort claim may not proceed. As the majority correctly states, the filed rate doctrine exists to protect the “antidiseriminatory policy which lies at ‘the heart of the common-carrier section of the Communications Act.’ ” Ante, at 223. Centra!to that anti-diseriminatory policy is the notion that all purchasers of services covered by the tariff will pay the same rate. The filed rate doctrine furthers this policy by disallowing suits brought to enforce agreements to provide services on terms different from those listed in the tariff. This ensures that the tariff governs the terms by which the common carrier provides those services to its customers.

It is crucial to note, however, that this is all the tariff governs. In order for. the filed rate doctrine to serve its purpose, therefore, it need pre-empt only those suits that seek to alter the terms and conditions provided for in the tariff. This is how the doctrine has been applied in the past. In Chicago & Alton R. Co. v. Kirby, 225 U. S. 155 (1912), for example, respondent entered into a contract with petitioner to ship horses from Springfield, Illinois, to New York City via a special fast train. The tariff that the petitioner had filed “did not provide for an expedited service, nor for transportation by any particular train.” Id., at 163. The Court ruled that respondent’s suit to enforce the special arrangement could not proceed:

“An advantage accorded by special agreement which affects the value of the service to the shipper and its cost to the carrier should be published in the tariffs, and for a breach of such a contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage in that it is not one open to all others in the same situation.” Id., at 165.

In Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156, 163 (1922), the question was not whether a separate contract could be enforced, but rather whether petitioner could bring an antitrust complaint challenging the rate that respondents had filed in their tariff. The Court ruled that he could not:

“The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.” Ibid, (emphasis added).

In this case respondent’s contract claim seeks to enforce side arrangements that it made with petitioner. Respond- ■ ent contends that petitioner promised to provide it with services on terms different from those listed in the tariff. As the above eases make clear, the filed rate doctrine bars such a claim. Respondent’s tort claim is entirely derivative of its contractual claim, and the Court is therefore correct in concluding that the doctrine also bars the tort claim.

The tariff does not govern, however, the entirety of the relationship between the common carrier and its customers. For example, it does not affect whatever duties state law might impose on petitioner to refrain from intentionally interfering with respondent’s relationships with its customers by means other than failing to honor unenforceable side agreements, or to refrain from engaging in slander or libel, or to satisfy other contractual obligations. The filed rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff. It does not serve as a shield against all actions based in state law. It is with this understanding that I join the Court’s opinion.

Justice Stevens,

dissenting.

Everyone agrees that respondent’s tortious interference claim would be barred by the filed rate doctrine if it is “wholly derivative of the contract claim for additional and better services.” Ante, at 226 (majority opinion); ante, at 228 (Rehnquist, C. J., concurring). Moreover, it is true that when the Magistrate Judge ruled that respondent’s ease would not support a punitive damages award as a matter of state law, he characterized the tort claim as “stem[ming] from the alleged failure of AT&T to comply with its contractual relationship.” Tr. 2207. In my opinion, however, the jury’s verdict on respondent’s tort claim is supported by evidence that went well beyond, and differed in nature from, the contract claim.

If petitioner, in an effort to appropriate respondent’s customers, had included with each bill sent to a customer a statement expressly characterizing respondent as an unethical, profit-hungry middleman, I would think it clear that the filed rate doctrine would not constitute a defense to such tortious conduct. The evidence in the record indicates that a similar result was obtained by mailing bills to the customers that disclosed the markup that respondent obtained on their calls.

Respondent’s tort claim was also premised in part on testimony that AT&T used a telemarketer to contact respondent’s customers and, without their authorization, convert them to AT&T’s own long-distance service. Id., at 557-558. In rejecting AT&T’s motion for a directed verdict on the tort claim, the Magistrate recognized that this practice of “slamming” customers could “easily be a case of intentional interference” that would not necessarily also constitute breach of contract. Id., at 2166-2167. Slamming was clearly a part of the case presented in the District Court. There was an allegation of slamming in respondent’s amended complaint; in the District Court, AT&T’s trial counsel took issue with respondent’s effort to make slamming “a big part of this case,” id., at 2170, and said in closing argument that slamming “is the basis for this intentional interference” claim, id., at 2921; and nothing in the jury instructions remotely suggested that the tort claim required proof of broken promises by AT&T to provide additional services. Respondent’s evidence easily fits within the definition of intentional interference set forth in the jury charge:

“COT asserts that AT&T intentionally interfered with its business relations and expectations of future business relations with its customers, the end users of its SDN service. In order to prevail on this claim, COT must prove by a preponderance of the evidence, one, that COT had business relations with the probability of future economic benefit. Two, that AT&T was aware of the relationships and expectation of future benefits. Three, that AT&T intentionally interfered with COT’s business relations. Four, that AT&T interfered for an improper motive or by using improper means. And, five, that COT suffered economic injury as a result of the interference.” App. 71.

It may be the fact that the billing disclosures and slamming were the consequence of negligence rather than a deliberate plan to take over a network of customers that respondent had developed, but the jury concluded otherwise. It found that petitioner acted intentionally and willfully in interfering with respondent’s business relations. See ibid. That finding is doubly significant.

First, as the Court acknowledges, ante, at 228, the jury’s finding precludes a defense based on the provisions of the tariff that purport to limit petitioner’s liability. Second, and of greater importance, it determines that the most egregious tortious conduct was not merely derivative of the contract violations. Enforcement of respondent’s state-law right to be free from tortious interference with business relations does not somehow award respondent an unlawful preference that should have been specified in the tariff (presumably in return for an added fee or higher rate); it instead gives effect to a generally applicable right that petitioner is required, by state law, to respect in dealing with all others, customers and noncustomers alike. Thus, at least some of the tortious interference occurred independently of the customer-carrier relationship and would have been actionable even if respondent had never entered into a contract with AT&T.

The Court correctly states that the filed rate doctrine will pre-empt some tort claims, but we have never before applied that harsh doctrine to bar relief for tortious conduct with so little connection to, or effect upon, the relationship governed by the tariff. To the extent respondent’s tort claim is based on petitioner’s billing disclosures and slamming practices, it neither challenges the carrier’s filed rates, as did the antitrust claim in Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156 (1922), nor seeks a special service or privilege of the sort requested in cases such as Chicago & Alton R. Co. v. Kirby, 225 U. S. 155 (1912), and Davis v. Cornwell, 264 U. S. 560 (1924). More akin to this ease is Nader v. Allegheny Airlines, Inc., 426 U. S. 290, 300 (1976), in which we held that a common-law tort action for fraudulent misrepresentation against a federally regulated air carrier could “coexist” with the Federal Aviation Act. To a limited degree it may be said that here, as in Nader, “any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental.” Ibid. If the Communications Act’s saving clause means anything, it preserves state-law remedies against carriers on facts such as these.

The District Court and the Court of Appeals never considered whether respondent’s tort claim is wholly derivative of its contract claim for purposes of the filed rate doctrine, because those courts mistakenly believed that even the contract claim was not covered by the doctrine. On my own reading of the record, I think it clear that a portion of the tort claim is not pre-empted. The Court should therefore remand the ease for a new trial rather than ordering judgment outright for AT&T.

Although the Court holds broadly that respondent’s tort claim is totally barred, it declines to consider whether a portion of the claim might survive on remand because this issue was not part of the question presented in the petition for certiorari and was not specifically raised by respondent. Ante, at 226-227, n. 2. The latter point is wholly irrelevant, precisely because of the scope of the question presented. The only question that we agreed to deeide was whether the filed rate doctrine pre-empts “state-law contract and tort claims based on a common carrier’s failure to honor an alleged side agreement to give its customer better service than called for by the carrier’s tariff” Pet. for Cert. i. The Court answers that legal question, and then decides an additional, factual one: whether respondent’s tort claim is “based on” AT&T’s “failure to honor an alleged side agreement,” and thus is “wholly derivative” of the pre-empted contract claim. In resolving that issue, the Court cannot simply rely on AT&T’s bald assertion, supported only by a statement of the Magistrate taken out of context, that the tort claim is “wholly derivative”; we have an obligation either to study the record or at least to remand and allow the lower courts to consider the proper application of the legal rule to the facts of this case.

I respectfully dissent.

       Eight months after the dose of discovery (and well after the 2-year statute of limitations in the Communications Act, §415), respondent sought leave to file a second amended complaint to add a § 202 daim. The Magistrate Judge denied the request. Respondent did not appeal that ruling.

       The dissent argues that “the jury’s verdict on respondent’s tort daim is supported by evidence that went well beyond, and differed in nature from, the contract daim,” post, at 231, which the dissent asserts requires us to remand this case rather than reverse the judgment. This issue of noncontract evidence neither was included within the question presented for our review (“Whether... the Ninth Circuit improperly allowed state-law contract and tort claims based on a common carrier’s failure to honor an alleged side agreement to give its customer better service than called for by the carrier’s tariff”) nor was raised by respondent as an alternative ground in support of the judgment. Nor has respondent ever suggested the need for a remand, even though the petition for certiorari sought not merely reversal, but summary reversal. In its brief on the merits, respondent argued that the intentional tort claim was not pre-empted because AT&T’s willful breach of its contractual commitments was not protected by the filed rate doctrine. There was no hint of an argument that, even if that willful breach could not form the basis for an action, other alleged intentional acts sufficed to support the judgment below. At no point has respondent disputed the Magistrate Judge’s finding that the tort claim is derivative of the contract claim, or the Ninth Circuit’s description of its tort claim as based on the fact that “because COT had promised certain benefits of SDN to its customers, and because AT&T provided competing services, any violation of AT&T’s contractual duties constituted tortious interference with COT’s relationship with its customers.” 108 F. 3d 981, 988 (1997). Contrary to the dissent’s assertion, we have no obligation to search the record for the existence of a nonjurisdictional point not presented, and to consider a disposition (remand instead of reversal) not suggested by either side.

       “[Djespite repeated requests by COT to AT&T, AT&T failed to rectify incidents of unauthorized changes made in the designated carriers (‘slamming') of COT's customers.” App. 28.

       The jury’s $13 million damages award, reduced by the Magistrate Judge to $1,154 million, did not differentiate between the contract and tort claims.

       “Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” 47 U. S. C. §414.

       Beyond the billing disclosures and slamming, respondent asserts that AT&T also misappropriated customer information from respondent’s confidential database. Brief for Respondent 4. That basis for a tort remedy, if supported by sufficient evidence, would also appear not to be pre-empted by the filed rate doctrine.