author: Justice Ginsburg Justice Scalia, Justice Thomas,

text:
    HENDERSON v. UNITED STATES
    No. 95-232.
    Argued March 19, 1996
    Decided May 20, 1996

      Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion, in which Kennedy, J., joined, post, p. 672. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 673.

      Richard A. Sheehy argued the cause for petitioner. With him on the briefs were Kenneth R. Breitbeil and Lauren L. Beck.

      Malcolm L. Stewart argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Michael E. Robinson, and Timothy R. Lord.

   Justice Ginsburg

delivered the opinion of the Court.

This case concerns the period allowed for service of process in a civil action commenced by a seaman injured aboard a vessel owned by the United States. Recovery in such cases is governed by the Suits in Admiralty Act, 46 U. S. C. App. §741 et seq., which broadly waives the Government’s sovereign immunity. See §742 (money judgments); §743 (costs and interest). Rule 4 of the Federal Rules of Civil Procedure allows 120 days to effect service of the summons and timely filed complaint, a period extendable by the court. The Suits in Admiralty Act, however, instructs that service shall be made “forthwith.” § 742. The question presented is whether the Act’s “forthwith” instruction for service of process has been superseded by the Federal Rule.

In the Rules Enabling Act, 28 U. S. C. §2071 et seq., Congress ordered that, in matters of “practice and procedure,” § 2072(a), the Federal Rules shall govern, and “[a]ll laws in conflict with such rules shall be of no further force or effect,” § 2072(b). We hold that, in actions arising under federal law, commenced in compliance with the governing statute of limitations, the manner and timing of serving process are generally nonjurisdictional matters of “procedure” controlled by the Federal Rules.

I

On August 27, 1991, petitioner Lloyd Henderson, a merchant mariner, was injured while working aboard a vessel owned and operated by the United States. On April 8,1993, after exhausting administrative remedies, Henderson filed a seaman’s personal injury action against the United States, pursuant to the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U. S. C. App. §741 et seq. Under that Act, suits of the kind Henderson commenced “may be brought... within two years after the cause of action arises.” §745. Henderson brought his action well within that time period. He commenced suit, as Federal Rule of Civil Procedure 3 instructs, simply “by filing a complaint with the court.”

Having timely filed his complaint, Henderson attempted to follow the Federal Rules on service. It is undisputed that the following Rules, and nothing in the Suits in Admiralty Act, furnished the immediately relevant instructions. Federal Rule of Civil Procedure 4(a) (1988) provided: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff’s attorney, who shall be responsible for prompt service of the summons and a copy of the complaint.” Rule 4(b) provided: “The summons shall be signed by the clerk, [and] be under the seal of the court.” Rule 4(d) stated: “The summons and complaint shall be served together.”

A series of slips occurred in obtaining the summons required by Rule 4. Henderson’s counsel requested the appropriate summons forms and file-stamped copies of the complaint on April 8, 1993, the day he filed Henderson’s complaint. But the court clerk did not respond immediately. Counsel eventually obtained the forms on April 21,1993, and completed and returned them to the clerk. On May 4, counsel received the summons mailed to him from the clerk’s office, and on May 19, counsel sent the summons and complaint, by certified mail, to the Attorney General, who received them on May 25.

Service on the local United States Attorney took longer. On May 25, Henderson’s counsel forwarded the summons and complaint, as received from the clerk, to a “constable” with a request to effect service. On June 1, the constable’s office returned the documents, informing Henderson’s counsel that the summons was not in proper form, because it lacked the court’s seal. Counsel thereupon wrote to the court clerk requesting new summons forms with the appropriate court seal. Counsel repeated this request on August 19; ultimately, on August 25, Henderson’s counsel received the properly sealed summons.

Once again, Henderson’s counsel requested the constable’s service and, on August 30, moved for an extension of time to serve the United States Attorney. The court granted the motion, extending the time for service until September 15. The United States Attorney received personal service of the summons and complaint, in proper form, on September 3, 1993.

Thus, the Attorney General received the complaint 47 days after Henderson filed suit, and the United States Attorney was personally served 148 days after Henderson commenced the action by filing his complaint with the court. On November 17, 1993, the United States moved to dismiss the action. The grounds for, and disposition of, that motion led to Henderson’s petition for certiorari.

The United States has never maintained that it lacked notice of Henderson’s complaint within the 2-year limitation period prescribed for Suits in Admiralty Act claims. See 46 U. S. C. App. § 745; Tr. of Oral Arg. 38-39 (counsel for United States acknowledged that service on Attorney General gave Government actual notice three months before 2-year limitation period ended). Nor has the Government asserted any prejudice to the presentation of its defense stemming from the delayed service of the summons and complaint. And the manner and timing of service, it appears beyond debate, satisfied the requirements of Federal Rule of Civil Procedure 4 (titled “Summons” and detailing prescriptions on service of process).

In support of its motion to dismiss, the United States relied exclusively on §2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, which provides in part:

“The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for [the] district [where suit is brought] and mail a copy thereof by registered mail to the Attorney General of the United States.”

This provision has remained unchanged since its enactment in 1920,18 years before the Federal Rules of Civil Procedure became effective, and 46 years before admiralty cases were brought within the realm of the Civil Rules. The Government argued that Henderson’s failure to serve process “forthwith,” as required by §742, deprived the District Court of subject-matter jurisdiction because §742 describes the conditions of the United States’ waiver of sovereign immunity.

The District Court initially denied the Government’s motion, but reconsidered the matter based on an intervening Fifth Circuit decision, United States v. Holmberg, 19 F. 3d 1062, cert. denied, 513 U. S. 986 (1994). The court in Holm-berg, agreeing with the United States, held that the §742 service “forthwith” requirement “is a condition of the Government’s waiver of sovereign immunity and, thus, a jurisdictional prerequisite.” 19 F. 3d, at 1064. In so ruling, the Holmberg court rejected the argument that service of process under the Suits in Admiralty Act, as in the generality of cases arising and timely filed under federal law, is a matter of procedure, now governed by the Federal Rules of Civil Procedure.

Bound by Holmberg, the District Court dismissed Henderson’s complaint for lack of subject-matter jurisdiction, and the Court of Appeals, adhering to Holmberg, affirmed. 51 F. 3d 574 (CA5 1995). We granted certiorari to resolve disagreement among lower courts on the question whether Federal Rule 4, which authorizes an extendable 120-day period for service of process, supersedes the Suits in Admiralty Act provision that service on the United States be made “forthwith.”

II

The United States first suggests that Rule 4’s extendable 120-day time prescription, and the Suits in Admiralty Act’s service “forthwith” instruction, can and should be read harmoniously. The Rule 4 time limit for service, Rule 4(j) at the time Henderson’s action commenced, provided:

“(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant . . . .” Fed. Rule Civ. Proc. 4(j) (1988).

Section 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, prescribes service “forthwith,” see supra, at 659, a word not precisely defined in the Act or in case law, but indicative of a time far shorter than 120 days. The apparent conflict dissolves, the Government urges, if one reads Rule 4 as establishing not “an affirmative right to serve [a] complaint” within 120 days, but only an outer boundary for timely service. See Brief for United States 14, 18, 26; Tr. of Oral Arg. 28, 30.

We reject the Government’s view of the time the Federal Rules authorize for service. Reading Rule 4 in its historical context, we conclude that the 120-day provision operates not as an outer limit subject to reduction, but as an irreducible allowance. Prior to 1983, Rule 4 contained no time limit for service. Until the changes installed that year, United States marshals attended to service. The relevant Rule 4 provisions read:

“(a) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to any other person authorized by Rule 4(c) to serve it. . . .
“(c) By whom served. Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose . . . .” Fed. Rule Civ. Proc. 4(a), (c) (1980).

Marshals were expected to effect service expeditiously, and Rule 41(b), providing for dismissal “[f]or failure of the plaintiff to prosecute,” could be invoked as a check against unreasonable delay. See 9 C. Wright & A. Miller, Federal Practice and Procedure §2370, pp. 374-376 (2d ed. 1995); 2 J. Moore, Moore’s Federal Practice ¶4.18, p. 436 (2d ed. 1995).

Rule 4 changes made operative in 1983 completed a shift in responsibility for service from the United States marshals to the plaintiff. See Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N. C. L. Rev. 795, 845 (1991). With marshals no longer available as routine process servers, the Judicial Conference considered a time control necessary; the Conference proposed, and this Court approved, 120 days from the filing of the complaint as the appropriate limit. Congress relaxed the rule change by authorizing an extension of the 120-day period if the party responsible for service showed “good cause.” See supra, at 661; 128 Cong. Rec. 30931-30932 (1982), reprinted in 28 U. S. C. App., p. 647.

Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period “even if there is no good cause shown.” See Advisory Committee’s Notes on Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 654. And tellingly, the text of Rule 4 sets out, as “[a] specific instance of good cause,” ibid., allowance of “a reasonable time” to “cur[e] the failure to serve multiple officers ... of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General” within the prescribed 120 days. Fed. Rule Civ. Proc. 4(i)(3).

The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow. Furthermore, the United States acknowledges that, §2 of the Suits in Admiralty Act aside, Rule 4’s extendable 120-day time prescription applies to the full range of civil litigation, including cases brought against the United States under the Federal Tort Claims . Act, 28 U. S. C. §2675, and the Tucker Act, ch. 359, 24 Stat. 505 (1887) (current version 28 U. S. C. §§ 1346, 1491 and other scattered sections of 28 U. S. C.). See Tr. of Oral Arg. 33. We are therefore satisfied that Rule 4’s regime conflicts irreconcilably with Suits in Admiralty Act §2’s service “forthwith” instruction, and we turn to the dispositive question: Does the Rule supersede the inconsistent statutory direction?

1 — 1 hH I — 1

The Rules Enabling Act, 28 U. S. C. § 2071 et seq., authorizes the Supreme Court “to prescribe general rules of practice and procedure ... for cases in the United States district courts . .. and courts of appeals,” § 2072(a), and directs:

“Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” § 2072(b).

Correspondingly, and in confirmation of the understanding and practice under the former Federal Equity Rules, Federal Rule of Civil Procedure 82 provides: “[The Federal Rules of Civil Procedure] shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” See 1937 Advisory Committee’s Notes on Fed. Rule Civ. Proc. 82, 28 U. S. C. App., p. 821 (Rule 82 confirms that the Rules’ broad allowance of claim joinder “does not extend federal jurisdiction.”); see also 12 Wright & Miller, supra, § 3141, at 210-214.

According to the United States, Rule 4 cannot supersede §2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, for the latter is “jurisdictional” and affects “substantive rights” by setting the terms on which the United States waives its sovereign immunity. Henderson, in contrast, characterizes the Suits in Admiralty Act’s service “forthwith” instruction as a nonjurisdictional processing rule. Service “forthwith,” he urges, forms no part of the immunity waiver or §745’s statute of limitations, but is simply a direction for the conduct of litigation once the case is timely launched in court— a characteristically “how to” direction in conflict with, and therefore superseded by, Rule 4.

Before examining the text of § 742 to determine the character of the service “forthwith” provision, we note that the conflict with Rule 4 is of relatively recent vintage. The Suits in Admiralty Act, which allows in personam suits against the United States for maritime torts, was enacted in 1920, 18 years before the advent of the Federal Rules. Furthermore, admiralty cases were processed, from 1845 until 1966, under discrete Admiralty Rules. Even after 1966, the year admiralty cases were brought under the governance of the Federal Rules of Civil Procedure, Rule 4 and the Suits in Admiralty Act service “forthwith” provision could coexist. Rule 4, as just recounted, originally contained no time prescription, only the direction that, “[u]pon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service,” generally to a United States marshal. See supra, at 662. It was only in 1983, when plaintiffs were made responsible for service without the aid of the marshal, that the 120-day provision came into force, a provision that rendered Rule 4’s time frame irreconcilable with § 742’s service “forthwith” instruction.

Section 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, captioned “Libel in personam,” contains a broad waiver of sovereign immunity in its first sentence:

“In cases where if [a vessel owned or operated by the United States] were privately owned or operated ... a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States .. ..”

Section 3 of the Act, 46 U. S. C. App. § 743, although captioned “Procedure in cases of libel in personam,” completes the immunity waiver by providing for costs and interest on money judgments against the United States. See United States v. Bodcaw Co., 440 U. S. 202, 203-204, n. 3 (1979); Fed. Rule Civ. Proc. 54(d)(1) (absent an authorizing statute, United States is not liable for costs); Library of Congress v. Shaw, 478 U. S. 310, 314 (1986) (absent an authorizing statute, United States is not liable for interest).

The United States asserts that not just the first sentence of §742, but that section in its entirety is “jurisdictional,” spelling out the terms and conditions of the Government’s waiver of sovereign immunity, in contrast to the next section of the Suits in Admiralty Act, 46 U. S. C. App. § 743, which governs “procedure,” specifying in its first sentence: “Such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.” See Brief for United States 26-27; see also Holmberg, 19 F. 3d, at 1064; Libby v. United States, 840 F. 2d 818, 820 (CA11 1988) (“The fact that the waiver of sovereign immunity is declared in section 742, while the procedures governing admiralty suits against the United States are specified in section 743, indicates that the requirements contained in section 742 are more than procedural.”). The dissent adopts this argument hook, line, and sinker. See post, at 674-676 (finding key to text and structure of the Suits in Admiralty Act in Congress’ placement of service requirement in § 2 (46 U. S. C. App. § 742) rather than § 3 (46 U. S. C. App. § 743)). But just as § 743 is not “purely procedural,” for it waives the Sovereign’s immunity as to costs and interest, so §742 is not pervasively “jurisdictional.”

The sentence immediately following § 742’s broad waiver, and immediately preceding the sentence on service, reads:

“Such, suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel. . . charged with liability is found.”

This notably generous-to-plaintiffs provision will be recognized instantly as one describing venue choices, not subject-matter jurisdiction. Cf. 28 U. S. C. § 1391 (“Venue generally”).

Section 742’s final sentence provides:

“Upon application of either party the cause may, in the discretion of the court, be transferred to any other district court of the United States.”

Cf. 28 U. S. C. § 1404 (change of venue to more convenient forum); §1406 (authorizing transfer, rather than dismissal, when venue is improperly laid). Congress simultaneously added to the Suits in Admiralty Act, the Public Vessels Act, and the Federal Tort Claims Act the transfer provision just set out so that “jurisdictional” dismissals could be avoided when plaintiffs commenced suit under the wrong statute. See S. Rep. No. 1894, 86th Cong., 2d Sess., pp. 2-5 (1960); cf. 28 U. S. C. § 1631 (authorizing transfer, inter alia, when review of agency action is sought in the wrong federal court). In short, far from reining in “jurisdiction,” § 742’s venue and transfer provisions afford plaintiffs multiple forum choices and spare plaintiffs from dismissal for suing in the wrong place or under the wrong Act.

Section 742’s critical sentence on service reads:

“The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General. . . .”

Rule 4, as observed at oral argument, see Tr. of Oral Arg. 27-28, provides for dispatch of the summons and complaint to the Attorney General “by registered or certified mail.” See supra, at 658, and n. 4. The Government’s sovereign-immunity waiver, counsel for the United States agreed, did not depend on registered mail service, the sole form of mailing § 742 authorizes; “in this day and age,” counsel said, “certified mail would be acceptable.” Tr. of Oral Arg. 28-29. But see post, at 678, n. 4 (“jurisdiction in [a Suits in Admiralty Act] suit may turn upon the plaintiff’s use of registered mail”). It thus appears that several of § 742’s provisions are not sensibly typed “substantive” or “jurisdictional.” Instead, they have a distinctly facilitative, “procedural” cast. They deal with case processing, not substantive rights or consent to suit.

If the service "forthwith” prescription is not made “substantive” or “jurisdictional” by its inclusion — along with broad venue choices — in § 742, is it a rule of procedure superseded by Rule 4? Before we address that dispositive question, we note a preliminary issue. Rule 4(j), which contained the 120-day prescription at the time Henderson filed suit, was not simply prescribed by this Court pursuant to the Rules Enabling Act. See 28 U. S. C. § 2074 (rules transmitted by Court to Congress “not later than May 1” become effective “no earlier than December 1” of the same year unless Congress otherwise provides). Instead, the Rule was enacted into law by Congress as part of the Federal Rules of Civil Procedure Amendments Act of 1982, §2, 96 Stat. 2527. See supra, at 662. As the United States acknowledges, however, a Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes. See Brief for United States 16, n. 14 (“We agree with petitioner ... that Section 2072(b) provides the best evidence of congressional intent regarding the proper construction of Rule 4(j) and its interaction with other laws.”).

Returning to the dispositive question, we need not linger over the answer. What we have so far said, and the further elaboration below, lead securely to this response: Rule 4 governs summons and service in this case in whole and not in part.

A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must immediately resort to Rule 4 for instructions on service of process. See supra, at 657, and nn. 3,4. In that Rule, one finds instructions governing, inter alia, form and issuance of the summons, service of the summons together with the complaint, who may serve process, and proof of service. The Rule also describes how service shall or may be effected on various categories of defendants, including, in detail, “the United States, and Its Agencies, Corporations, or Officers.” All these prescriptions, it is uncontested, apply in Suits in Admiralty Act cases, just as they apply in other federal cases. We see no reason why the prescription governing time for service is not, as is the whole of Rule 4, a nonjurisdictional rule governing “practice and procedure” in federal cases, see 28 U. S. C. § 2072(a), consistent with the Rules Enabling Act and Federal Rule 82, and rendering provisions like the Suits in Admiralty Act’s service “forthwith” requirement “of no further force or effect,” § 2072(b). See Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F. 2d 62, 66 (CA3 1985) (just as Rule 4 “now governs the method of service of process in admiralty actions, as well as service of process on the United States in all civil cases to which it is a party,” so the “congressional enactment of a uniform 120-day period for accomplishing service of process” supersedes inconsistent prior law, in particular, “the Suits in Admiralty Act’s requirement of forthwith service”); Kenyon v. United States, 676 F. 2d 1229, 1232 (CA9 1981) (Boochever, J., concurring) (“I can see no logical reason why there should be a different method of service in this one instance [Suits in Admiralty Act cases] in which the United States is a defendant.”).

Service of process, we have come to understand, is properly regarded as a matter discrete from a court’s jurisdiction to adjudicate a controversy of a particular kind, or against a particular individual or entity. Its essential purpose is auxiliary, a purpose distinct from the substantive matters aired in the precedent on which the dissent, wrenching cases from context, extensively relies — who may sue, on what claims, for what relief, within what limitations period. Instead, the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections. Seeing service in this light, and in view of the uniform system Rule 4 of the Federal Rules of Civil Procedure provides, we are satisfied that the service “forthwith” provision of Suits in Admiralty Act, 46 U. S. C. App. § 742, has been displaced by Rule 4, and therefore has no current force or effect.

* * *

For the reasons stated, the judgment of the Court of Appeals affirming the dismissal of Henderson’s complaint is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

with whom Justice Kennedy joins, concurring.

I join the opinion of the Court. I write separately to make clear that it is not my view, and I do not understand the Court to hold, that no procedural provision can be jurisdictional. It assuredly is within the power of Congress to condition its waiver of sovereign immunity upon strict compliance with procedural provisions attached to the waiver, with the result that failure to comply will deprive a court of jurisdiction. For the reasons stated by the Court, I do not think that the legislative scheme here makes the “forthwith” service requirement such a condition.

Justice Thomas,

with whom The Chief Justice and Justice O’Connor join, dissenting.

The Suits in Admiralty Act (SAA or Act) entitles the United States to be served with process “forthwith” in all admiralty proceedings brought under the Act. As a statutory condition on the Government’s waiver of its immunity, this time restriction on service demands strict compliance and delimits the district court’s jurisdiction to entertain suits in admiralty.against the United States. The majority’s conclusion that this requirement is supplanted by former Federal Rule of Civil Procedure 4(j) (now Rule 4(m)) rests on a misreading of the SAA and is irreconcilable with our sovereign immunity jurisprudence. Because I believe that Congress intended to restrict admiralty suits against the United States to those cases in which the United States receives service of process forthwith, I respectfully dissent.

As a sovereign, the United States “is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U. S. 584, 586 (1941). “A necessary corollary of this rule is that when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 287 (1983). See also Lehman v. Nakshian, 453 U. S. 156, 160-161 (1981) (“Like a waiver of [sovereign] immunity itself, which must be ‘unequivocally expressed,’ ‘this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied’” (citations omitted)). The fact that the condition involves a matter of procedure does not affect the analysis, for “in many cases this Court has read procedural rules embodied in statutes waiving immunity strictly, with an eye to effectuating a restrictive legislative purpose when Congress relinquishes sovereign immunity.” Honda v. Clark, 386 U. S. 484, 501 (1967).

As always, the starting point in interpreting the extent of a waiver of sovereign immunity is the text of the statute. Section 2 of the Act contains the actual waiver. It provides that “[i]n cases where if [a] vessel [of the United States] were privately owned or operated, or if . . . cargo [of the United States] were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States.” 46 U. S. C. App. § 742. Section 2 also contains the service provision at issue in this case, which states that a plaintiff suing the United States in admiralty “shall forthwith serve a copy of his libel on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General of the United States, and shall file a sworn return of such service and mailing. Such service and mailing shall constitute valid service on the-United States.” Ibid. Section 3 of the Act, aptly titled “Procedure in cases of libel in personam,” provides that suits under the SAA “shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.” §743.

The text and structure of the SAA lead me to conclude that Congress intended to allow admiralty suits to proceed against the United States only in cases in which process is served “forthwith.” The key to understanding the scheme enacted by Congress lies not so much in Congress’ decision to place this service requirement in §2 as in its decision not to address service of process in § 3; for this reason, the majority’s sentence-by-sentence analysis of § 2, see ante, at 665-668, is largely beside the point. Section 3 provides that the ordinary rules of procedure governing private parties in admiralty also govern suits under the SAA. But Congress excepted from this provision the service-of-process requirement and placed it in a separate section altogether. This suggests not only that Congress attached greater significance to the requirement that process be served forthwith than to other procedural rules, but, more importantly, that Congress expected process to be served forthwith in SAA cases regardless of the “principles of law and . . . rules of practice obtaining in like cases between private parties.” 46 U. S. C. App. §743.

Even were I not convinced that the SAA’s requirement of prompt service is a condition on the Government’s waiver of sovereign immunity, I still could not agree with the majority that it clearly is not a condition on the waiver. At best, the SAA is ambiguous on this point, and when interpreting the breadth of a waiver of sovereign immunity, ambiguity must always be resolved in favor of the Government. See United States v. Williams, 514 U. S. 527, 531 (1995). We have consistently reaffirmed “the traditional principle that the Government’s consent to be sued must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires.” United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (citations and internal quotation marks omitted). See also Library of Congress v. Shaw, 478 U. S. 310, 318 (1986). It is at least plausible to interpret the SAA’s service provision as a condition on the waiver, and that is enough to justify construing the statute in the Government’s favor. Cf. Nordic Village, supra, at 37.

Because the SAA’s service requirement is best read as a condition on the Government’s waiver of sovereign immunity, it necessarily follows that this requirement cannot be superseded by a Federal Rule of Civil Procedure. Sovereign immunity is by nature jurisdictional, FDIC v. Meyer, 510 U. S. 471, 475 (1994), and the terms of the United States’ “ 'consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” Ibid, (quoting Sherwood, 312 U. S., at 586). Though the Rules Enabling Act provides that all previously enacted laws that are “in conflict with” the Federal Rules of Civil Procedure “shall be of no further force or effect,” 28 U. S. C. § 2072(b), it also expressly provides that the Federal Rules “shall not abridge, enlarge or modify any substantive right,” ibid. Allowing SAA claims in which process is not served forthwith to proceed against the United States infringes upon the Government’s immunity and thereby alters a substantive right in direct contravention of the Rules Enabling Act. Moreover, Federal Rule of Civil Procedure 82 makes clear that the Rules of Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts.” Given the jurisdictional nature of a waiver of sovereign immunity, allowing this suit to proceed also violates Rule 82.

I do not mean to imply that ordinary procedural rules automatically become jurisdictional prerequisites in civil cases simply because the United States is a defendant; they do not. But Congress certainly has the power to impose a procedural requirement as a condition on a waiver of sovereign immunity and to require strict compliance with that condition as a prerequisite to invoking or maintaining the court’s jurisdiction. The text and structure of the SAA demonstrate that Congress exercised this power when it enacted the SAA, and “nothing in the . . . rules of civil practice so far as they may be applicable in suits brought in district courts [against the Government] authorizes the maintenance of any suit against the United States to which it has not otherwise consented.” Sherwood, supra, at 589.

The majority rejects the proposition, accepted by four of the five Courts of Appeals that have addressed this issue, that a service requirement can serve as a condition on a waiver of sovereign immunity. This cannot be, the majority concludes, because service is “not sensibly typed ‘substantive’ or ‘jurisdictional,’ ” and instead has a “ ‘procedural’ cast” and “deal[s] with case processing.” Ante, at 667-668. But the proper inquiry is not whether the condition is in nature “procedural” or “substantive,” for we have long maintained that even procedural rules can condition a waiver of sovereign immunity. See Honda, 386 U. S., at 501. The fact that Congress has determined to limit the scope of its consent to suit is sufficient to restrict federal-court jurisdiction over the United States, regardless of the nature of the condition Congress has attached. For instance, though no one would claim that failure to satisfy a statute of limitations in a case between private parties would serve as a jurisdictional bar to the plaintiff’s suit, we have long held that a statute of limitations attached to a waiver of sovereign immunity functions as a condition on the waiver and defines the limits of the district court’s jurisdiction to hear a claim against the United States. See Williams, 514 U. S., at 534, n. 7; Block, 461 U. S., at 287; United States v. Kubrick, 444 U. S. 111, 117-118 (1979); Soriano v. United States, 352 U.S. 270, 271, 273 (1957). See generally 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3654, pp. 194-199 (1985). The same is true of the SAA’s service requirement. While service of process in a case between private parties may generally be understood to be “a matter discrete from a court’s jurisdiction to adjudicate a controversy of a particular kind,” ante, at 671, a waiver of sovereign immunity conditioned upon a particular method of service would transform what is ordinarily a nonjurisdic-tional rule into a jurisdictional one.

Once the majority concludes that Congress attached no particular significance to the SAA’s requirement that process be served forthwith, the conclusion that Rule 4(j), by operation of the Rules Enabling Act, displaces §2’s service requirement would appear to 'flow naturally. But that is not the case. As the Government concedes, the Rules Enabling Act is “technically inapplicable” in this case, Brief for United States 16, n. 14, because Rule 4(j) was not promulgated by this Court but rather was enacted by Congress, see Pub. L. 97-462, 96 Stat. 2528, and the Rules Enabling Act by its terms nullifies only statutory rules of procedure that conflict with rules promulgated by the Supreme Court.

The majority acknowledges the inapplicability of the Rules Enabling Act, ante, at 668, but appears to apply the Act nonetheless, ante, at 669-670 (citing 28 U. S. C. § 2072(b)). The majority is not entirely clear on this point, however, and it appears that the majority may instead find that Rule 4(j) effected an implied repeal of § 2’s service requirement independent of the Rules Enabling Act. See ante,, at 668 (“[A] Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes”). The majority may mean by this statement only that the Rules Enabling Act pertains equally to Rules of Procedure promulgated by this Court and by Congress, but I am reluctant to assume, absent clearer indication, the Court’s reliance on a method of statutory construction that allows us to rewrite a statute when the text does not address the specific situation before us or when it does not generate an outcome that we desire. Regardless of the rubric under which this case is actually decided, the Court, in my opinion, reaches the wrong conclusion. In contrast to the rest of the procedures that apply in SAA cases, the Act requires a specific method of service even though the procedures that govern similar cases may differ. This, in combination with the critical fact that this case involves a waiver of sovereign immunity, leads me to conclude that Rule 4(j) does not displace the service requirement of §2 either under the Rules Enabling Act or as an implied repeal.

The only question remaining is whether Henderson served his complaint on the United States “forthwith.” There is no reasonable argument that he did. Henderson served his complaint on the United States Attorney 148 days after he filed it in the District Court. Although we have never undertaken to define “forthwith” as it is used in the SAA, it is clear that the term “connotes action which is immediate, without delay, prompt, and with reasonable dispatch.” Amella v. United States, 732 F. 2d 711, 713 (CA9 1984) (citing Black’s Law Dictionary 588 (5th ed. 1979)). See also Dickerman v. Northern Trust Co., 176 U. S. 181, 192-193 (1900). Whatever problems Henderson may have had in serving his complaint upon the United States, the 148-day delay can hardly be described as process served forthwith under even the most generous definition of the term. I respectfully dissent.

       Henderson’s complaint also invoked the Public Vessels Act, 43 Stat. 1112, as amended, 46 U. S. C. App. § 781 et seq. The Government maintains, however, that Henderson’s suit falls under the exclusive governance of the Suits in Admiralty Act, because his claim arose from employment aboard a Maritime Administration vessel. See Brief for United States 8, n. 9 (citing 57 Stat. 45, as amended, 50 U. S. C. App. § 1291(a) (1988 ed.)). Henderson apparently does not contest this assertion. In any case, claims under both Acts proceed the same way. See 46 U. S. C. App. § 782 (suits under the Public Vessels Act “shall be subject to and proceed in accordance with the provisions” of the Suits in Admiralty Act).

       In a suit on a right created by federal law, filing a complaint suffices to satisfy the statute of limitations. See West v. Conrail, 481 U. S. 35, 39 (1987). In a federal-court suit on a state-created right, however, a plaintiff must serve process before the statute of limitations has run, if state law so requires for a similar state-court suit. See Walker v. Armco Steel Corp., 446 U. S. 740, 752-753 (1980) (reaffirming Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530 (1949)). But cf. Hanna v. Plumer, 380 U. S. 460 (1965) (method of service, as distinguished from time period for commencement of civil action, is governed by Federal Rules in all actions, including suits based on state-created rights).

       The substance of these provisions is retained in current Rules 4(a), (b), and (c)(1).

       Federal Rule of Civil Procedure 4(d)(4), effective at that time, instructed that “a copy of the summons and of the complaint [be sent] by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia.” The same instruction currently appears in Rule 4(i)(l)(B).

       Federal Rule of Civil Procedure 4( j), then in force, provided for service of the summons and complaint within 120 days after the filing of the complaint, a time limit subject to extension for good cause. The substance of this provision is retained in current Rule 4(m),' which permits a district court to enlarge the time for service “even if there is no good cause shown.” Advisory Committee’s Notes on 1993 Amendments to Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 654.

       In any event, the filing of the complaint within the limitation period rendered the action timely. See supra, at 657, n. 2.

       The Holmberg court “agree[d] that there has been no uniform definition of forthwith,” as that term is used in §742,19 F. 3d, at 1065, and the Court of Appeals in the instant case took no position on whether service on the Attorney General 47 days after commencement of the action could count as “forthwith.” 51 F. 3d, at 577. The court held, however, that the “forthwith” requirement applies to service on both officers — the United States Attorney and the Attorney General — and stated that “completing service in 148 days [through service on the United States Attorney] is not forthwith.” Id., at 576.

       Compare, e.g., Libby v. United States, 840 F. 2d 818, 819-821 (CA11 1988); Kenyon v. United States, 676 F. 2d 1229, 1231 (CA9 1981); Battaglia
        v. United, States, 303 F. 2d 683, 685-686 (CA2), cert. dism’d, 371 U. S. 907 (1962), with Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F. 2d 62, 66 (CA3 1985). See also Kenyon, 676 F 2d, at 1231-1232 (Boochever, J., concurring); Battaglia, 303 F. 2d, at 686-687 (Friendly, J., concurring).

       Currently, Rule 4(m) states the time limit for service. See supra, at 658. n. 5.

       Rule 4(m), captioned “Time Limit for Service,” currently provides:
      “If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period....” (Emphasis added.)

       Specifically, the second sentence of § 743 reads:
      “A decree against the United States . . . may include costs of suit, and when the decree is for a money judgment, interest at the rate of 4 per centum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based.”

       While striving for fidelity to what Congress wrote, see post, at 674, 679, the dissent inexplicably writes off many of § 742’s words as “largely beside the point,” post, at 674.

       Even before admiralty proceedings were placed under the governance of the Federal Rules, Judge Henry Friendly trenchantly observed:
      “I cannot believe Congress meant [to render ‘jurisdictional’ every failure by a libelant to comply with a procedural step outlined in the Suits in Admiralty Act]; I should have supposed that, once Congress gave the basic consent to sue the United States, as it did in the first sentence of [§742], it was content to have the courts decide the effect of various procedural lapses in the same manner as ‘if such vessel were privately owned or operated.’” Battaglia v. United States, 303 F. 2d, at 686 (concurring opinion).
      Circuit precedent was otherwise, however, and therefore Judge' Friendly reluctantly concurred in the “Draconian conclusion” that a 4-month delay in mailing the pleadings to the Attorney General called for dismissal of the ease, despite “forthwith” service on the United States Attorney. Cf. Fed. Rule Civ. Proc. 4(i)(3) (“court shall allow a reasonable time” to “cur[e] the failure to serve multiple officers ... of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General”).

       Currently, Fed. Rule Civ. Proe. 4(a), (b), (c), and (l).

       Currently, Fed. Rule Civ. Proc. 4(e) — (j).

       Currently, Fed. Rule Civ. Proe. 4(i); formerly, Fed. Rule Civ. Proe. 4(d)(4). See supra, at 658, n. 4; Kenyon, 676 F. 2d, at 1232 (Boochever, J., concurring) (noting that § 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, specifies mailing “by registered mail to the Attorney General of the United States,” and commenting that the Federal Rule, then Rule 4(d)(4), supersedes, allowing “registered or certified mail”). The current Rule— 4(i) — further facilitates service when the United States is a party by permitting the United States Attorney to designate clerical employees to receive process and allowing service on the United States Attorney by mail. See Fed. Rule Civ. Proc. 4(i)(A).

       The Government acknowledges the aim of the rulemakers, from the start, to provide “‘a uniform and comprehensive method of service for all actions against the United States,’ ” Brief for United States 19-20, n. 18 (quoting Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 641), but tenders a distinction between “method” and “timing” of service, Brief for United States 19-20, n. 18. Current Rule 4(i)(3) shows why the suggested separation of “time” from “method” or “manner” in this context is not credible. That provision, addressing “time” in relation to “manner,” instructs:
      “The court shall allow a reasonable time for service of process ... for the purpose of curing the failure to serve multiple officers... of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General of the United States.”

       Judge Boochever, like Judge Friendly, see supra, at 668, n. 13, reluctantly concurred in Circuit precedent, which ranked service “forthwith” “a condition precedent to the congressional waiver of the Government’s sovereign immunity,” Kenyon, 676 F. 2d, at 1231. But he stated cogently the view he would take “if freed from the bounds of stare decisis”: “Section 742 does not constitute an integral part of the substantive waiver of sovereign immunity, but is a mere procedural provision necessary at the time of the statute’s enactment, to effectuate that waiver. As such it was superseded by the Federal Rules.” Id., at 1232 (concurring opinion).
      Curiously, although the Ninth Circuit, in Kenyon and other cases, has typed the Suits in Admiralty Act service “forthwith” provision “jurisdictional,” that Court of Appeals has pointed to a remedy for litigants in Henderson’s situation: Amend the complaint, even after the 2-year statute of limitations (46 U. S. C. App. § 745) has run, serve the United States Attorney and the Attorney General “forthwith,” and by those steps, gain the benefit of the original complaint filing date through the application of the “relation back” provision of Federal Rule, of Civil Procedure 15(c). See Ashland v. Ling-Temco-Vought, Inc., 711 F. 2d 1431, 1435-1437 (CA9 1983) (allowing such relation back when plaintiff amended a complaint, brought four years earlier under the Federal Tort Claims Act, to assert instead a claim under the Suits in Admiralty Act); cf. Tr. of Oral Arg. 38 (counsel for United States acknowledged that Henderson, who filed his complaint April 8,1993, could have filed a fresh complaint anytime before August 27 of that year (the date the 2-year statute of limitations expired), and served it “forthwith,” thereby avoiding the loss of his claim).

         I. e., subject-matter jurisdiction. See 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3522, p. 78 (2d ed. 1984); Restatement (Second) of Judgments § 11, p. 108 (1982) (defining “subject matter jurisdiction” as the “authority [of the court] to adjudicate the type of controversy involved in the action”).

       On relationships sufficient to support “jurisdiction over persons,” see generally Restatement (Second) of Conflict of Laws §§ 27-32, 35-44, 47-52 (1971 and Supp. 1989). See also 4 Wright & Miller, Federal Practice and Procedure §1064.

         See United States v. Sherwood, 312 U. S. 584 (1941) (Tucker Act, allowing contract claims against United States, does not authorize joinder of claims between private parties).

       See United States v. Nordic Village, Inc., 503 U. S. 30, 39 (1992) (Bankruptcy Code § 106(c) does not waive the Government’s sovereign immunity from bankruptcy trustee’s monetary relief claims).

       See Library of Congress v. Shaw, 478 U. S. 310, 323 (1986) (Government’s waiver of immunity from suit for damages does not waive immunity with respect to interest).

       See, e. g., United States v. Williams, 514 U. S. 527, 534, n. 7 (1995); Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 287 (1983). But cf. Honda v. Clark, 386 U. S. 484 (1967) (Trading with Enemy Act § 34(f) provided a 60-day claim-filing limitation; Court applied traditional equitable tolling principles to preserve petitioners’ cause of action where similar suit was filed within 60-day limitation).

       See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) (to qualify as adequate, notice generally must “apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”). See also Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1134 (1966) (recognizing notice as a matter separate from bases of adjudicatory jurisdiction); 4 Wright & Miller, supra, § 1063, at 225 (same).

       For instance, in United States v. Sherwood, 312 U. S. 584 (1941), we held that the possibility of joinder under the liberal joinder provisions of the Federal Rules does not authorize a district court to hear a claim brought against the Government for breach of contract by a party not specifically authorized to bring suit against the United States under the Tucker Act. Notwithstanding the possibility of joinder in a similar case between private parties, we explained that “[t]he matter [was] not one of procedure but of jurisdiction whose limits are marked by the Government’s consent to be sued,” and held that the Government’s consent to suit “may be conditioned ... on the restriction of the issues to be adjudicated in the suit, to those between the claimant and the Government.” Id., at 591.

       See United States v. Holmberg, 19 F. 3d 1062 (CA5), cert. denied, 513 U. S. 986 (1994); Libby v. United States, 840 F. 2d 818 (CA11 1988); Amelia v. United States, 732 F. 2d 711 (CA9 1984); Battaglia v. United States, 303 F. 2d 683 (CA2), cert. dism’d, 371 U. S. 907 (1962). Only one Circuit has gone the other way. See Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F. 2d 62 (CA3 1985).

       Although we held in Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95-96 (1990), that statutes of limitations in cases brought against the Government are presumptively subject to equitable tolling, we also reaffirmed in that case that a time restriction on suit against the United States “is a condition to the waiver of sovereign immunity and thus must be strictly construed.” Id., at 94. Irwin did mark a departure from our earlier, and stricter, treatment of statutes of limitations in the sovereign immunity context, but our decision in United States v. Williams, 514 U. S. 527 (1995), makes clear that statutes of limitations in suits brought against the United States are no less jurisdictional prerequisites than they were before Irwin. Williams confirmed that a statute of limitations “narrow[s] the waiver of sovereign immunity,” 514 U. S., at 534, n. 7, and cited for this proposition United States v. Dalm, 494 U. S. 596 (1990), which held that failure to file a claim against the Government for a federal tax refund within the statute of limitations operates as a jurisdictional bar to suit.

       I recognize that, under my reading of the Act, jurisdiction in an SAA suit may turn upon the plaintiff’s use of registered mail, which is also specified in the sentence of §2 that requires process to be served forthwith. 46 U. S. C. App. § 742. Though this may seem like an odd requirement from our modern perspective, the most sensible textual reading of the Act is still that Congress sought to impose a specific method of service in SAA cases without regard to the rules governing service generally. Congress is free to amend the statute if it determines that the SAA has fallen out of date with modern mailing practices.


source: Caselaw Access Project

author: Justice Ginsburg Justice Thomas,

license: Public Domain

text:
    DOCTOR’S ASSOCIATES, INC., et al. v. CASAROTTO et ux.
    No. 95-559.
    Argued April 16, 1996
    Decided May 20, 1996

      Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, post, p. 689.

      Mark R. Kravitz argued the cause for petitioners. With him on the briefs were Jeffrey R. Bobbin and H. Bartow Farr III.

      Lucinda A. Sikes argued the cause for respondents. With her on the brief were David C. Vladeck, Paul Alan Levy, and William C. Watt.

       Briefs of amici curiae urging reversal were filed for the American Council of Life Insurance by Patricia A. Dunn, Stephen J. Goodman, and Phillip E. Stano; for the International Franchise Association et al. by William J. Fitzpatrick and John F. Verhey; and for Kaiser Foundation Health Plan, Inc., by Kennedy P. Richardson.

        Deborah M. Zuckerman, Steven S. Zaleznick, and Patricia Sturdevant filed a brief for the American Association of Retired Persons et al. as amici curiae urging affirmance.

   Justice Ginsburg

delivered the opinion of the Court.

This case concerns a standard form franchise agreement for the operation of a Subway sandwich shop in Montana. When a dispute arose between parties to the agreement, franchisee Paul Casarotto sued franchisor Doctor’s Associates, Inc. (DAI), and DAI’s Montana development agent, Nick Lombardi, in a Montana state court. DAI and Lombardi sought to stop the litigation pending arbitration pursuant to the arbitration clause set out on page nine of the franchise agreement.

The Federal Arbitration Act (FAA or Act) declares written provisions for arbitration “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. § 2. Montana law, however, declares an arbitration clause unenforceable unless “[n]otice that [the] contract is subject to arbitration” is “typed in underlined capital letters on the first page of the contract.” Mont. Code Ann. §27-5-114(4) (1995). The question here presented is whether Montana’s law is compatible with the federal Act. We hold that Montana’s first-page notice requirement, which governs not “any contract,” but specifically and solely contracts “subject to arbitration,” conflicts with the FAA and is therefore displaced by the federal measure.

I

Petitioner DAI is the national franchisor of Subway sandwich shops. In April 1988, DAI entered a franchise agreement with respondent Paul Casarotto, which permitted Casarotto to open a Subway shop in Great Falls, Montana. The franchise agreement stated, on page nine and in ordinary type: “Any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by Arbitration . . . .” App. 75.

In October 1992, Casarotto sued DAI and its agent, Nick Lombardi, in Montana state court, alleging state-law contract and tort claims relating to the franchise agreement. DAI demanded arbitration of those claims, and successfully moved in the Montana trial court to stay the lawsuit pending arbitration. Id., at 10-11.

The Montana Supreme Court reversed. Casarotto v. Lombardi, 268 Mont. 369, 886 P. 2d 931 (1994). That court left undisturbed the trial court’s findings that the franchise agreement fell within the scope of the FAA and covered the claims Casarotto stated against DAI and Lombardi. The Montana Supreme Court held, however, that Mont. Code Ann. §27-5-114(4) rendered the agreement’s arbitration clause unenforceable. The Montana statute provides:

“Notice that a contract is subject to arbitration . . . shall be typed in underlined capital letters on the first page of the contract; and unless such notice is displayed thereon, the contract may not be subject to arbitration.”

Notice of the arbitration clause in the franchise agreement did not appear on the first page of the contract. Nor was anything relating to the clause typed in underlined capital letters. Because the State’s statutory notice requirement had not been met, the Montana Supreme Court declared the parties’ dispute “not subject to arbitration.” 268 Mont., at 382, 886 P. 2d, at 939.

DAI and Lombardi unsuccessfully argued before the Montana Supreme Court that §27-5-114(4) was preempted by §2 of the FAA. DAI and Lombardi dominantly relied on our decisions in Southland Corp. v. Keating, 465 U. S. 1 (1984), and Perry v. Thomas, 482 U. S. 483 (1987). In Southland, we held that § 2 of the FAA applies in state as well as federal courts, see 465 U. S., at 12, and “withdraws] the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration,” id., at 10. We noted in the pathmarking South- land, decision that the FAA established a “broad principle of enforceability,” id., at 11, and that §2 of the federal Act provided for revocation of arbitration agreements only upon “grounds as exist at law or in equity for the revocation of any contract.” In Perry, we reiterated: “[S]tate law, whether of legislative or judicial origin, is applicable i/that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with [the text of §2].” 482 U. S., at 493, n. 9.

The Montana Supreme Court, however, read our decision in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989), as limiting the preemptive force of § 2 and correspondingly qualifying Southland and Perry. 268 Mont., at 378-381, 886 P. 2d, at 937-939. As the Montana Supreme Court comprehended Volt, the proper inquiry here should focus not on the bare words of §2, but on this question: Would the application of Montana’s notice requirement, contained in §27-5-114(4), “undermine the goals and policies of the FAA.” 268 Mont., at 381, 886 P. 2d, at 938 (internal quotation marks omitted). Section 27-5-114(4), in the Montana court’s judgment, did not undermine the goals and policies of the FAA, for the notice requirement did not preclude arbitration agreements altogether; it simply prescribed “that before arbitration agreements are enforceable, they be entered knowingly.” Id., at 381, 886 P. 2d, at 939.

DAI and Lombardi petitioned for certiorari. Last Term, we granted their petition, vacated the judgment of the Montana Supreme Court, and remanded for further consideration in light of Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). See 515 U. S. 1129 (1995). In Allied-Bruce, we restated what our decisions in Southland and Perry had established:

“States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause 'upon such grounds as exist at law or in equity for the revocation of any contract.’ 9 U. S. C. §2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal ‘footing,’ directly contrary to the Act’s language and Congress’s intent.” 513 U. S., at 281.

On remand, without inviting or permitting further briefing or oral argument, the Montana Supreme Court adhered to its original ruling. The court stated: “After careful review, we can find nothing in the [Allied-BruceJ decision which relates to the issues presented to this Court in this case.” Casarotto v. Lombardi, 274 Mont. 3, 7, 901 R 2d 596, 598 (1995). Elaborating, the Montana court said it found “no suggestion in [Allied-Bruce] that the principles from Volt on which we relied [to uphold §27-5-114(4)] have been modified in any way.” Id., at 8, 901 P. 2d, at 598-599. We again granted certiorari, 516 U. S. 1036 (1996), and now reverse.

H-H HH

Section 2 of the FAA provides that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). Repeating our observation in Perry, the text of § 2 declares that state law may be applied “if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” 482 U. S., at 498, n. 9. Thus, generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening §2. See Allied-Bruce, 513 U. S., at 281; Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 483-484 (1989); Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 226 (1987).

Courts may not, however, invalidate arbitration agreements under state laws applicable only to arbitration provisions. See Allied-Bruce, 513 U. S., at 281; Perry, 482 U. S., at 493, n. 9. By enacting §2, we have several times said, Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed “upon the same footing as other contracts.” Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974) (internal quotation marks omitted). Montana’s §27-5-114(4) directly conflicts with § 2 of the FAA because the State’s law conditions the enforceability of arbitration agreements on compliance with a special notice requirement not applicable to contracts generally. The FAA thus displaces the Montana statute with respect to arbitration agreements covered by the Act. See 2 I. Macneil, R. Speidel, T. Stipanowich, & G. Shell, Federal Arbitration Law §19.1.1, pp. 19:4-19:5 (1995) (under Southland and Perry, “state legislation requiring greater information or choice in the making of agreements to arbitrate than in other contracts is preempted”).

The Montana Supreme Court misread our Volt decision and therefore reached a conclusion in this case at odds with our rulings. Volt involved an arbitration agreement that incorporated state procedural rules, one of which, on the facts of that case, called for arbitration to be stayed pending the resolution of a related judicial proceeding. The state rule examined in Volt determined only the efficient order of proceedings; it did not affect the enforceability of the arbitration agreement itself. We held that applying the state rule would not “undermine the goals and policies of the FA A,” 489 U. S., at 478, because the very purpose of the Act was to “ensur[e] that private agreements to arbitrate are enforced according to their terms,” id., at 479.

Applying §27-5-114(4) here, in contrast, would not enforce the arbitration clause in the contract between DAI and Casarotto; instead, Montana’s first-page notice requirement would invalidate the clause. The “goals and policies” of the FA A, this Court’s precedent indicates, are antithetical to threshold limitations placed specifically and solely on arbitration provisions. Section 2 “mandate[s] the enforcement of arbitration agreements,” Southland, 465 U. S., at 10, “save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2. Section 27-5-114(4) of Montana’s law places arbitration agreements in a class apart from “any contract,” and singularly limits their validity. The State’s prescription is thus inconsonant with, and is therefore preempted by, the federal law.

* * *

For the reasons stated, the judgment of the Supreme Court of Montana is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Thomas,

dissenting.

For the reasons given in my dissent last Term in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995), I remain of the view that §2 of the Federal Arbitration Act, 9 U. S. C. §2, does not apply to proceedings in state courts. Accordingly, I respectfully dissent.

       Section 2 provides, in relevant part:

        “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9U.S.C. §2.

       Dissenting Justice Gray thought it “cavalier” of her colleagues to ignore the defendants’ request for an “opportunity to brief the issues raised by the . . . remand and to present oral argument.” Casarotto v. Lombardi, 274 Mont. 3, 9-10, 901 P. 2d 596, 599-600 (1995).

       At oral argument, counsel for Casarotto urged a broader view, under which §27-5-114(4) might be regarded as harmless surplus. See Tr. of Oral Arg. 29-32. Montana could have invalidated the arbitration clause in the franchise agreement under general, informed consent principles, counsel suggested. She asked us to regard §27-5-114(4) as but one illustration of a cross-the-board rule: Unexpected provisions in adhesion contracts must be conspicuous. See also Brief for Respondents 21-24. But the Montana Supreme Court announced no such sweeping rule. The court did not assert as a basis for its decision a generally applicable principle of “reasonable expectations” governing any standard form contract term. Cf. Transamerica Ins. Co. v. Royle, 202 Mont. 173, 180, 656 P. 2d 820, 824 (1983) (invalidating provision in auto insurance policy that did not “honor the reasonable expectations” of the insured). Montana’s decision trains on and upholds a particular statute, one setting out a precise, arbitration-specific limitation. We review that disposition, and no other. It bears reiteration, however, that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what. . . the state legislature cannot.” Perry v. Thomas, 482 U. S. 483, 493, n. 9 (1987).


author: CHIEF Justice Rehnquist Justice Scalia,

text:
    ORNELAS et al. v. UNITED STATES
    No. 95-5257.
    Argued March 26, 1996
    Decided May 28, 1996
    Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 700.

      Robert G. LeBell argued the cause for petitioners. With him on the briefs was Brian W. Gleason.

      Cornelia I L. Pillará argued the cause for the United States. With her on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Joel M. Gershowitz.

      Peter D. Isakoff, by invitation of the Court, 516 U. S. 1008, argued the cause and filed a brief as amicus curiae in support of the judgment below.

         Tracey Maclin, Steven R. Shapiro, and Barbara E. Bergman filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

        Fred E. Inbau, Wayne W. Schmidt, James P. Manak, and Bernard J. Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They reserved their right to appeal the District Court’s denial of their motion to suppress the cocaine found in their car. The District Court had found reasonable suspicion to stop and question petitioners as they entered their car, and probable cause to remove one of the interior panels where a package containing two kilograms of cocaine was found. The Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed “deferentially,” and “for clear error.” We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.

The facts are not disputed. In the early morning of a December day in 1992, Detective Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff’s Department with 2 years specializing in drug enforcement, was conducting drug-interdiction surveillance in downtown Milwaukee. Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel parking lot. The car attracted Pautz’s attention for two reasons: because older model, two-door General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and because California is a “source State” for drugs. Detective Pautz radioed his dispatcher to inquire about the car’s registration. The dispatcher informed Pautz that the owner was either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which name the dispatcher gave. Detective Pautz checked the motel registry and learned that an Ismael Ornelas accompanied by a second man had registered at 4 a.m., without reservations.

Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration (DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and Dangerous Drugs Information System (NADDIS), a federal database of known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report identified Miguel Ledesma Ornelas as a heroin dealer from El Centro, California, and Ismael Ornelas, Jr., as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the department’s drug-sniffing dog, Merlin. Upon their arrival, Detective Pautz left for another assignment. Detective Hurrle informed Luedke of what they knew and together they waited.

Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective Hurrle approached the car, identified himself as a police officer, and inquired whether they had any illegal drugs or contraband. Petitioners answered “No.” Hurrle then asked for identification and was given two California driver’s licenses bearing the names Saul Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael was shaking somewhat. Deputy Luedke, who over the past nine years had searched approximately 2,000 cars for narcotics, searched the Oldsmobile’s interior. He noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the door-jam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested.

Petitioners filed pretrial motions to suppress, alleging that the police officers violated their Fourth Amendment rights when the officers detained them in the parking lot and when Deputy Luedke searched inside the panel without a warrant. The Government conceded in the court below that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave, so the encounter was an investigatory stop. See 16 F. 3d 714, 716 (CA7 1994). An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, Terry v. Ohio, 392 U. S. 1 (1968), and a warrantless search of a car is valid if based on probable cause, California v. Acevedo, 500 U. S. 565, 569-570 (1991).

After conducting an evidentiary hearing, the Magistrate Judge concluded that the circumstances gave the officers reasonable suspicion, but not probable cause. The Magistrate found, as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had an insufficient basis to conclude that drugs would be found within the panel. The Magistrate nonetheless recommended that the District Court deny the suppression motions because he thought, given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See Nix v. Williams, 467 U. S. 431 (1984).

The District Court adopted the Magistrate’s recommendation with respect to reasonable suspicion, but not its reasoning as to probable cause. The District Court thought that the model, age, and source-State origin of the car, and the fact that two men traveling together checked into a motel at 4 o’clock in the morning without reservations, formed a drug-courier profile and that this profile together with the NADDIS reports gave rise to reasonable suspicion of drug-trafficking activity; in the court’s view, reasonable suspicion became probable cause when Deputy Luedke found the loose panel. Accordingly, the court ruled that the cocaine need not be excluded.

The Court of Appeals reviewed deferentially the District Court’s determinations of reasonable suspicion and probable cause; it would reverse only upon a finding of “clear error.” 16 F. 3d, at 719. The court found no clear error in the reasonable-suspicion analysis and affirmed that determination. Ibid. With respect to the probable-cause finding, however, the court remanded the case for a determination on whether Luedke was credible when testifying about the loose panel. Id., at 721-722.

On remand, the Magistrate Judge expressly found the testimony credible. The District Court accepted the finding, and once again ruled that probable cause supported the search. The Seventh Circuit held that determination not clearly erroneous. Judgt. order reported at 52 F. 3d 328 (1995).

We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review. 516 U. S. 963 (1996).

Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible. They are commonsense, nontechnical conceptions that deal with “ The factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Illinois v. Gates, 462 U. S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U. S. 160, 175 (1949)); see United States v. Sokolow, 490 U. S. 1, 7-8 (1989). As such, the standards are “not readily, or even usefully, reduced to a neat set of legal rules.” Gates, supra, at 232. We have described reasonable suspicion simply as “a particularized and objective basis” for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U. S. 411, 417-418 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates, supra, at 238. We have cautioned that these two legal principles are not “finely-tuned standards,” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates, supra, at 232; Brinegar, supra, at 175 (“The standard of proof [for probable cause] is . . . correlative to what must be proved”); Ker v. California, 374 U. S. 23, 33 (1963) (“This Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application”; “[e]ach case is to be decided on its own facts and circumstances” (internal quotation marks omitted)); Terry v. Ohio, 392 U. S., at 29 (the limitations imposed by the Fourth Amendment “will have to be developed in the concrete factual circumstances of individual cases”).

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19 (1982).

We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court’s determination. See, e. g., Brinegar, supra (rejecting District Court’s conclusion that the police lacked probable cause); Alabama v. White, 496 U. S. 325 (1990) (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, “[i]n the absence of any significant difference in the facts,” “the Fourth Amendment’s incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause.” Brinegar, supra, at 171. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable.

In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles. See Miller v. Fenton, 474 U. S. 104, 114 (1985) (where the “relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact’s conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law”).

Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined “ ‘set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.’” New York v. Belton, 453 U. S. 454, 458 (1981); see also Thompson v. Keohane, 516 U. S. 99, 115 (1995) (“[T]he law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law,” and those effects “serve legitimate law enforcement interests”).

It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, “one determination will seldom be a useful ‘precedent’ for another,” Gates, supra, at 238, n. 11. But there are exceptions. For instance, the circumstances in Brinegar, supra, and Carroll v. United States, 267 U. S. 132 (1925), were so alike that we concluded that reversing the Court of Appeals’ decision in Brinegar was necessary to be faithful to Carroll. Brinegar, supra, at 178 (“Nor . . . can we find in the present facts any substantial basis for distinguishing this case from the Carroll case”). We likewise recognized the similarity of facts in United States v. Sokolow, supra, and Florida v. Royer, 460 U. S. 491 (1983) (in both cases, the defendant traveled under an assumed name; paid for an airline ticket in cash with a number of small bills; traveled from Miami, a source city for illicit drugs; and appeared nervous in the airport). The same was true both in United States v. Ross, 456 U. S. 798 (1982), and California v. Acevedo, 500 U. S. 565 (1991), see id., at 572 (“The facts in this case closely resemble the facts in Ross”); and in United States v. Mendenhall, 446 U. S. 544 (1980), and Reid v. Georgia, 448 U. S. 438 (1980), see id., at 443 (Powell, J., concurring) (“facts [in Men-denhall] [are] remarkably similar to those in the present case”). And even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject.

The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the “ ‘great deference’ ” paid when reviewing a decision to issue a warrant, see Illi nois v. Gates, 462 U. S. 213 (1983). See United States v. Spears, 965 F. 2d 262, 269-271 (CA7 1992). We cannot agree. The Fourth Amendment demonstrates a “strong preference for searches conducted pursuant to a warrant,” Gates, supra, at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable-cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.

We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city’s salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee’s average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping in Milwaukee in December is either there to transact business or to visit family or friends. The background facts, though rarely the subject of explicit findings, inform the judge’s assessment of the historical facts.

In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e. g., United States v. Ortiz, 422 U. S. 891, 897 (1975). To a layman the sort of loose panel below the back seat armrest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court’s finding that the officer was credible and the inference was reasonable.

We vacate the judgments and remand the case to the Court of Appeals to review de novo the District Court’s determinations that the officer had reasonable suspicion and probable cause in this case.

It is so ordered.

Justice Scalia,

dissenting.

The Court today decides that a district court’s determinations whether there was probable cause to justify a warrant-less search and reasonable suspicion to make an investigatory stop should be reviewed de novo. We have in the past reviewed some mixed questions of law and fact on a de novo basis, and others on a deferential basis, depending upon essentially practical considerations. Because, with respect to the questions at issue here, the purpose of the determination and its extremely fact-bound nature will cause de novo review to have relatively little benefit, it is in my view unwise to require courts of appeals to undertake the searching inquiry that standard requires. I would affirm the judgment of the Court of Appeals.

As the Court recognizes, determinations of probable cause and reasonable suspicion involve a two-step process. First, a court must identify all of the relevant historical facts known to the officer at the time of the stop or search; and second, it must decide whether, under a standard of objective reasonableness, those facts would give rise to a reasonable suspicion justifying a stop or probable cause to search. See ante, at 696-697. Because this second step requires application of an objective legal standard to the facts, it is properly characterized as a mixed question of law and fact. See ibid,.; Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19 (1982).

Merely labeling the issues “mixed questions,” however, does not establish that they receive de novo review. While it is well settled that appellate courts “accep[t] findings of fact that are not ‘clearly erroneous’ but decidje] questions of law de novo,” First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 948 (1995), there is no rigid rule with respect to mixed questions. We have said that “deferential review of mixed questions of law and fact is warranted when it appears that the district court is ‘better positioned’ than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine.” Salve Regina College v. Russell, 499 U. S. 225, 233 (1991) (citing Miller v. Fenton, 474 U. S. 104, 114 (1985)).

These primary factors that counsel in favor of deferential review of some mixed questions of law and fact — expertise of the district court and lack of law-clarifying value in the appellate decision — are ordinarily present with respect to determinations of reasonable suspicion and probable cause. The factual details bearing upon those determinations are often numerous and (even when supported by uncontro-verted police testimony) subject to credibility determinations. An appellate court never has the benefit of the district court’s intimate familiarity with the details of the case — nor the full benefit of its hearing of the live testimony, unless the district court makes specific findings on the “totality of the circumstances” bearing upon the stop or search. As we recognized in Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990), a case holding that deferential (abuse-of-discretion) review should be applied to a district court’s Federal Rule of Civil Procedure 11 determination that an attorney did not conduct a reasonable inquiry or entertain a “substantiated belief” regarding the nonfrivolousness of the complaint, see id., at 393: A district court, “[fjamiliar with the issues and litigants ... is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard . . . .” Id., at 402.

Moreover, as the Court acknowledges, “reasonable suspicion” and “probable cause” are “commonsense, nontechnical conceptions that deal with ‘ “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.””’ Ante, at 695 (quoting Illinois v. Gates, 462 U. S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U. S. 160, 175 (1949))). Where a trial court makes such commonsense determinations based on the totality, of circumstances, it is ordinarily accorded deference. What we said in a case concerning the question whether certain payments were a “gift” excludable from income under the Internal Revenue Code is equally pertinent here.

“Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the . . . standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact.” Commissioner v. Duberstein, 363 U. S. 278, 289 (1960).

With respect to the second factor counseling in favor of deferential review, level of law-clarifying value in the appellate decision: Law clarification requires generalization, and some issues lend themselves to generalization much more than others. Thus, in Pierce v. Underwood, 487 U. S. 552, 562 (1988), a principal basis for our applying an abuse-of-discretion standard to a district court’s determination that the United States’ litigating position was “substantially justified” within the meaning of the Equal Access to Justice Act, 28 U. S. C. § 2412(d), was that the question was “a multifarious and novel question, little susceptible, for the time being at least, of useful generalization.” 487 U. S., at 562. Probable-cause and reasonable-suspicion determinations are similarly resistant to generalization; As the Court recognizes, these are “fluid concepts,” “ ‘not readily, or even usefully, reduced to a neat set of legal rules’ and “because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, ‘one determination will seldom be a useful “precedent” for another.’ ” Ante, at 695-696, 698 (quoting Illinois v. Gates, supra, at 232, 238, n. 11). The Court maintains that there will be exceptions to this — that fact patterns will occasionally repeat themselves, so that a prior de novo appellate decision will provide useful guidance in a similar case. Ante, at 698. I do not dispute that, but I do not understand why we should allow the exception to frame the rule. Here, as in Anderson v. Bessemer City, 470 U. S. 564, 574-575 (1985), “[duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.”

The facts of this very case illustrate the futility of attempting to craft useful precedent from the fact-intensive review demanded by determinations of probable cause and reasonable suspicion. On remand, in conducting de novo review, the Seventh Circuit might consider, inter alia, the following factors relevant to its determination whether there was probable cause to conduct a warrantless search and reasonable suspicion justifying the investigatory stop: (i) the two NADDIS tips; (ii) that the car was a 1981 two-door General Motors product; (iii) that the car was from California, a source State; (iv) that the car was in Milwaukee; (v) that it was December; (vi) that one suspect checked into the hotel at 4 a.m.; (vii) that he did not have reservations; (viii) that he had one traveling companion; (ix) that one suspect appeared calm but shaking; and (x) that there was a loose panel in the car door. If the Seventh Circuit were to find that this unique confluence of factors supported probable cause and reasonable suspicion, the absence of any one of these factors in the next case would render the precedent inapplicable.

Of course, even when all of the factors are replicated, use of a de novo standard as opposed to a deferential standard will provide greater clarity only where the latter would not suffice to set the trial court’s conclusion aside. For where the appellate court holds, on the basis of deferential review, that it was reversible error for a district court to find probable cause or reasonable suspicion in light of certain facts, it advances the clarity of the law just as much as if it had reversed the district court after conducting plenary review.

In the present case, an additional factor counseling against de novo review must be mentioned: The prime benefit of de novo appellate review in criminal cases is, of course, to prevent a miscarriage of justice that might result from permitting the verdict of guilty to rest upon the legal determinations of a single judge. But the issue in these probable-cause and reasonable-suspicion cases is not innocence but deterrence of unlawful police conduct. That deterrence will not be at all lessened if the trial judge’s determination, right or wrong, is subjected to only deferential review.

The Court is wrong in its assertion, ante, at 698-699, that unless there is a dual standard of review — deferential review of a magistrate’s decision to issue a warrant, and de novo review of a district court’s ex post facto approval of a war-rantless search — the incentive to obtain a warrant would be eliminated. In United States v. Leon, 468 U. S. 897, 913 (1984), we held that “reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate ... should be admissible in the prosecutor’s case in chief.” Only a warrant can provide this assurance that the fruits of even a technically improper search will be admissible. Law enforcement officers would still have ample incentive to proceed by warrant.

Finally, I must observe that the Court does not appear to have the courage of its conclusions. In an apparent effort to reduce the unproductive burden today’s decision imposes upon appellate courts, or perhaps to salvage some of the trial court’s superior familiarity with the facts that it has cast aside, the Court suggests that an appellate court should give “due weight” to a trial court’s finding that an officer’s inference of wrongdoing (i. e., his assessment of probable 2ause to search) was reasonable. Ante, at 700. The Court cannot have it both ways. This finding of “reasonableness” is precisely what it has told us the appellate court must review de novo; and in de novo review, the “weight due” to a trial court’s finding is zero. In the last analysis, therefore, the Court’s opinion seems to me not only wrong but contradictory.

* * *

I would affirm the judgment of the Seventh Circuit on the ground that it correctly applied a deferential standard of review to the District Court’s findings of probable cause and reasonable suspicion.

       Petitioners also alleged that they had not given their consent to search the interior of the car. The Magistrate Judge rejected this claim, finding that the record “clearly established] consent to search the Oldsmobile” and that “neither [petitioner] placed any restrictions on the areas the officers could search.” App. 21. The Magistrate ruled that this consent did not give the officers authority to search inside the panel, however, because under Seventh Circuit precedent the police may not dismantle the car body during an otherwise valid search unless the police have probable cause to believe the car’s panels contain narcotics. See United States v. Garcia, 897 F. 2d 1413, 1419-1420 (1990). We assume correct the Circuit’s limitation on the scope of consent only for purposes of this decision.

       The District Court emphasized twice that it did not reject the Magistrate’s recommendation with respect to the inevitable discovery doctrine. App. 30-31, and n. 2; id., at 43-44. But on appeal the Government did not defend the seizure on this alternative ground and the Seventh Circuit considered the argument waived. Id., at 71-72.

       While the Seventh Circuit uses the term “clear error” to denote the deferential standard applied when reviewing determinations of reasonable suspicion or probable cause, we think the preferable term is “abuse of discretion.” See Pierce v. Underwood, 487 U. S. 552, 558 (1988). “Clear error” is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact.

       Compare, e. g., United States v. Puerta, 982 F. 2d 1297, 1300 (CA9 1992) (de novo review); United States v. Ramos, 933 F. 2d 968, 972 (CA11 1991) (same), cert. denied, 503 U. S. 908 (1992); United States v. Patrick, 899 F. 2d 169, 171 (CA2 1990) (same), with United States v. Spears, 965 F. 2d 262, 268-271 (CA7 1992) (clear error).
      The United States, in accord with petitioners, contends that a de novo standard of review should apply to determinations of probable cause and reasonable suspicion. We therefore invited Peter D. Isakoff to brief and argue this ease as amicus curiae in support of the judgment below. 516 U. S. 1008 (1996). Mr. Isakoff accepted the appointment and has well fulfilled his assigned responsibility.