source: Caselaw Access Project

author: Justice Thomas Justice Scalia,

license: Public Domain

text:
    FELTNER v. COLUMBIA PICTURES TELEVISION, INC.
    No. 96-1768.
    Argued January 21, 1998
    Decided March 31, 1998

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 355.

      John G. Roberts, Jr., argued the cause for petitioner. With him on the briefs were David G. Leiteh and Jonathan S. Franklin.

      Henry J. Tashman argued the cause for respondent. With him on the brief was Gregory J. Kopta

        Howard B. Abrams, pro se, filed a brief as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Society of Composers, Authors and Publishers by I. Fred Koenigsberg and Philip H. Schaeffer; for the International Antieounterfeiting Coalition, Inc., by Peter W. James, Anthony M. Keats, and Larry W. McFarland; and for the National Football League et al. by Neil K Roman and Robert A Long, Jr.

   Justice Thomas

delivered the opinion of the Court.

Section 504(e) of the Copyright Act of 1976 permits a copyright owner “to recover, instead of actual damages and profits, an award of statutory damages ..., in a sum of not less than $500 or more than $20,000 as the court considers just.” 90Stat. 2585, as amended, 17 U. S. C. § 504(c)(1). In this case, we consider whether § 504(e) or the Seventh Amendment grants a right to a jury trial when a copyright owner elects to recover statutory damages. We hold that although the statute is silent on the point, the Seventh Amendment provides a right to a jury trial, which includes a right to a jury determination of the amount of statutory damages. We therefore reverse.

I

Petitioner C. Elvin Feltner owns Krypton International Corporation, which in 1990 acquired three television stations in the southeastern United States. Respondent Columbia Pictures Television, Inc., had licensed several television series to these stations, including “Who’s the Boss,” “Silver Spoons,” “Hart to Hart,” and “T. J. Hooker.” After the stations became delinquent in making their royalty payments to Columbia, Krypton and Columbia entered into negotiations to restructure the stations’ debt. These discussions were unavailing, and Columbia terminated the stations’ license agreements in October 1991. Despite Columbia’s termination, the stations continued broadcasting the programs.

Columbia sued Feltner, Krypton, the stations, various Krypton subsidiaries, and certain Krypton officers in Federal District Court alleging, inter alia, copyright infringement arising from the stations’ unauthorized broadcasting of the programs. Columbia sought various forms of relief under the Copyright Act of 1976 (Copyright Act), 17 U. S. C. § 101 et seq., including a permanent injunction, § 502; impoundment of all copies of the programs, § 503; actual damages or, in the alternative, statutory damages, §504; and costs and attorney’s fees, § 505. On Columbia’s motion, the District Court entered partial summary judgment as to liability for Columbia on its copyright infringement claims.

Columbia exercised the option afforded by § 504(c) of the Copyright Act to recover “Statutory Damages” in lieu of actual damages. In relevant part, § 504(c) provides:

“Statutory Damages—
“(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work,... in a sum of not less than $500 or more than $20,000 as the court considers just....
“(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court [in] its discretion may reduce the award of statutory damages to a sum of not less than $200....” 17 U. S. C. § 504(c).

The District Court denied Feltner’s request for a jury trial on statutory damages, ruling instead that such issues would be determined at a bench trial. After two days of trial, the trial judge held that each episode of each series constituted a separate work and that the airing of the same episode by different stations controlled by Feltner constituted separate violations; accordingly, the trial judge determined that there had been a total of 440 acts of infringement. The trial judge further found that Feltner’s infringement was willful and fixed statutory damages at $20,000 per act of infringement. Applying that amount to the number of acts of infringement, the trial judge determined that Columbia was entitled to $8,800,000 in statutory damages, plus costs and attorney’s fees.

The Court of Appeals for the Ninth Circuit affirmed in all relevant respects. Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F. 3d 284 (1997). Most importantly for present purposes, the court rejected Feltner’s argument that he was entitled to have a jury determine statutory damages. Relying on Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F. 2d 1157 (CA9 1977) — which held that § 25(b) of the Copyright Act of 1909, the statutory predecessor of § 504(c), required the trial judge to assess statutory damages — the Court of Appeals held that § 504(e) does not grant a right to a jury determination of statutory damages. The court reasoned that “[i]f Congress intended to overrule Krofft by having the jury determine the proper award of statutory damages, it would have altered” the language “as the court considers just” in § 504(e). 106 F. 3d, at 293. The Court of Appeals further concluded that the “Seventh Amendment does not provide a right to a jury trial on the issue of statutory damages because an award of such damages is equitable in nature.” Ibid. We granted certiorari. 521 U. S. 1151 (1997).

II

Before inquiring into the applicability of the Seventh Amendment, we must “'first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.Tull v. United States, 481 U. S. 412, 417, n. 3 (1987) (quoting Curtis v. Loether, 415 U. S. 189, 192, n. 6 (1974)). Sueh a construction is not possible here, for we cannot discern “any congressional intent to grant... the right to a jury trial,” 481 U. S., at 417, n. 3, on an award of statutory damages.

The language of § 504(c) does not grant a right to have a jury assess statutory damages. Statutory damages are to be assessed in an amount that “the court considers just.55 § 504(e)(1). Further, in the event that “the court finds” the infringement was willful or innocent, “the court in its discretion” may, within limits, increase or decrease the amount of statutory damages. § 504(c)(2). These phrases, like the entire statutory provision, make no mention of a right to a jury trial or, for that matter, to juries at all.

The word “court” in this context appears to mean judge, not jury. Cf. F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U. S. 228, 232 (1952) (referring to the “judicial discretion” necessary for “the court’s choice between a computed measure of damage and that imputed by” the Copyright Act of 1909 (emphasis added)). In fact, the other remedies provisions of the Copyright Act use the term “court” in contexts generally thought to confer authority on a judge, rather than a jury. See, e. g., § 502 (“court... may . . . grant temporary and final injunctions”); § 503(a) (“[T]he court may order the impounding... of all copies or phonorec-ords”); § 503(b) (“As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords”); § 505 (“[Tjhe court in its discretion may allow the recovery of full costs” of litigation, and “the court may also award a reasonable attorney’s fee”). In contrast, the Copyright Act does not use the term “court” in the subsection addressing awards of actual damages and profits, see § 504(b), which generally are thought to constitute legal relief. See Dairy Queen, Inc. v. Wood, 369 U. S. 469, 477 (1962) (action for damages for trademark infringement “subject to cognizance by a court of law”); see also Arnstein v. Porter, 154 F. 2d 464, 468 (CA2 1946) (copyright action for damages is “triable at ‘law5 and by a jury as of right”); Video Views, Inc. v. Studio 21, Ltd., 925 F. 2d 1010, 1014 (CA7 1991) (“little question that the right to a jury tidal exists in a copyright infringement action when the copyright owner endeavors to prove and recover its actual damages”); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 12.10[B] (1997) (“beyond dispute that a plaintiff who seeks to recover actual damages is entitled to a jury trial” (footnotes omitted)).

Feltner relies on Lorillard v. Pons, 434 U. S. 575, 585 (1978), in which we held that the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq., provides a statutory right to a jury trial in an action for unpaid wages even though the statute authorizes “the court... to grant such legal or equitable relief as may be appropriate,” § 626(b). That holding, however, turned on two crucial factors: The ADEA’s remedial provisions were expressly to be enforced in accordance with the Fair Labor Standards Act of 1938, as amended, 29 U. S. C. § 101 et seq., which had been uniformly interpreted to provide a right to a jury trial, Lorillard v. Pons, 434 U. S., at 580-581; and the statute used the word “legal,” which we found to be a “term of art” used in cases “in which legal relief is available and legal rights are determined” by juries, id., at 583. Section 504(c), in contrast, does not make explicit reference to another statute that has been uniformly interpreted to provide a right to jury trial and does not use the word “legal” or other language denoting legal relief or rights.

We thus discern no statutory right to a jury trial when a copyright owner elects to recover statutory damages. Accordingly, we must reaeh the constitutional question.

Ill

The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .” U. S. Const., Arndt. 7. Since Justice Story’s time, the Court has understood “Suits at common law” to refer “not merely [to] suits, which the common law recognized among its old and settled proceedings, but [to] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.” Parsons v. Bedford, 3 Pet. 433, 447 (1830) (emphasis in original). The Seventh Amendment thus applies not only to common-law causes of action, but also to “actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989) (citing Curtis v. Loether, 415 U. S., at 193). To determine whether a statutory action is more analogous to cases tried in courts of law than to suits tried in courts of equity or admiralty, we examine both the nature of the statutory action and the remedy sought. See 492 U. S., at 42.

Unlike many of our recent Seventh Amendment eases, which have involved modern statutory rights unknown to 18th-century England, see, e.g., Wooddell v. Electrical Workers, 502 U. S. 93 (1991) (alleged violations of union’s duties under Labor Management Relations Act, 1947, and Labor-Management Reporting and Disclosure Act of 1959); Granfinanciera v. Nordberg, supra (action to rescind fraudulent preference under Bankruptcy Act); Tull v. United States, 481 U. S. 412 (1987) (Government’s claim for civil penalties under Clean Water Act); Curtis v. Loether, supra (claim under Title VIII of Civil Rights Act of 1968), in this case there are close analogues to actions seeking statutory damages under § 504(c). Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement. More importantly, copyright suits for monetary damages were tried in courts of law, and thus before juries.

By the middle of the 17th century, the common law recognized an author’s right to prevent the unauthorized publication of his manuscript. See, e. g., Stationers Co. v. Patentees, Carter’s Rep. 89, 124 Eng. Rep. 842 (C. P. 1666). This protection derived from the principle that the manuscript was the product of intellectual labor and was as much the author’s property as the material on which it was written. See Millar v. Taylor, 4 Burr. 2303, 2398, 98 Eng. Rep. 201, 252 (K. B. 1769) (opinion of Mansfield, C. J.) (common-law copyright derived from principle that “it is just, that an Author should reap the pecuniary Profits of his own ingenuity and Labour”); 1 W. Patry, Copyright Law and Practice 3 (1994). Actions seeking damages for infringement of common-law copyright, like actions seeking damages for invasions of other property rights, were tried in courts of law in actions on the ease. See Millar v. Taylor, supra, at 2396-2397, 98 Eng. Rep., at 251. Actions on the ease, like other actions at law, were tried before juries. See McClenachan v. McCarty, 1 Dall. 375, 378 (C. P. Phila. Cty. 1788); 5 J. Moore, Moore’s Federal Practice ¶38.11[5] (2d ed. 1996); 1 J. Chitty, Treatise on Pleading and Parties to Actions 164 (1892).

In 1710, the first English copyright statute, the Statute of Anne, was enacted to protect published books. 8 Anne eh. 19 (1710). Under the Statute of Anne, damages for infringement were set at “one Penny for every Sheet which shall be found in [the infringer’s] custody, either printed or printing, published, or exposed to Sale,” half (“one Moiety”) to go to the Crown and half to the copyright owner, and were “to be recovered... by Action of Debt, Bill, Plaint, or Information.” §1. Like the earlier practice with regard to common-law copyright claims for damages, actions seeking damages under the Statute of Anne were tried in courts of law. See Beckford v. Hood, 7 T. R. 621, 627, 101 Eng. Rep. 1164, 1167 (K. B. 1798) (opinion of Kenyon, C. J.) C‘[T]he statute having vested that right in the author, the common law gives the remedy by action on the case for the violation of it”).

The practice of trying copyright damages actions at law before juries was followed in this .country, where statutory copyright protections were enacted even before adoption of the Constitution. In 1783, the Continental Congress passed a resolution recommending that the States secure copyright protections for authors. See U. S. Copyright Office, Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright, Bulletin No. 3, p. 1 (rev. ed. 1963) (hereinafter Copyright Enactments). Twelve States (all except Delaware) responded by enacting copyright statutes, each of which provided a cause of action for damages, and none of which made any reference to equity jurisdiction. At least three of these state statutes expressly stated that damages were to be recovered through actions at law, see id., at 2 (in Connecticut, damages for double the value of the infringed copy “to be recovered ... in any court of law in this State”); id., at 17 (in Georgia, similar damages enforceable “in due course of law”); id., at 19 (in New York, similar damages enforceable in “any court of law”), while four others provided that damages would be recovered in an “action of debt,” a prototypical action brought in a court of law before a jury. See F. Maitland, Forms of Action at Common Law 357 (1929) (hereinafter Maitland); see Copyright Enactments 4-9 (in Massachusetts, New Hampshire, and Rhode Island, damages enforceable by “action of debt”); id., at 12 (in South Carolina, damages of one shilling per sheet enforceable by .“debt, bill, plaint or information”). Although these statutes were short-lived, and hence few courts had occasion to interpret them, the available evidence suggests that the practice was for copyright actions seeking damages to be tried to a jury. See Hudson & Goodwin v. Patten, 1 Root 133, 134 (Conn. Super. Ct. 1789) (jury awarded copyright owner £100 under Connecticut copyright statute).

Moreover, three of the state statutes specifically authorized an award of damages from a statutory range, just as § 504(c) does today. See Copyright Enactments 4 (in Massachusetts, damages of not less than £5 and not more than £3,000); id., at 8 (in New Hampshire, damages of not less than £5 and not more than £1,000); id., at 9 (in Ehode Island, damages of not less than £5 and not more than £3,000). Although we have found no direct evidence of the practice under these statutes, there is no reason to suppose that such actions were intended to deviate from the traditional practice: The damages were to be recovered by an “action of debt,” see id., at 4-9, which was an action at law, see Mait-land 357.

In 1790, Congress passed the first federal copyright statute, the Copyright Act of 1790, which similarly authorized the awarding of damages for copyright infringements. Act of May 31,1790, eh. 15, §§2, 6,1 Stat. 124,125. The Copyright Act of 1790 provided that damages for copyright infringement of published works would be “the sum of fifty cents for every sheet which shall be found in [the infringer’s] possession,... to be recovered by action of debt in any court of record in the United States, wherein the same is cognizable.” §2. Like the Statute of Anne, the Copyright Act of 1790 provided that half (“one moiety”) of such damages were to go to the copyright owner and half to the United States. For infringement of an unpublished manuscript, the statute entitled a copyright owner to “all damages occasioned by such injury, to be recovered by a special action on the case founded upon this act, in any court having cognizance thereof.” § 6.

There is no evidence that the Copyright Act of 1790 changed the practice of trying copyright actions for damages in courts of law before juries. As we have noted, actions on the case and actions of debt were actions at law for which a jury was required. See supra, at 349, 350. Moreover, actions to recover damages under the Copyright Act of 1831— which differed from the Copyright Act of 1790 only in the amount (increased to $1 from 50 cents) authorized to be recovered for certain infringing sheets — were consistently tried to juries. See, e. g., Backus v. Gould, 7 How. 798, 802 (1849) (jury awarded damages of $2,069.75); Reed v. Carusi, 20 F. Cas. 431, 432 (No. 11,642) (CC Md. 1845) (jury awarded damages of $200); Millett v. Snowden, 17 F. Cas. 374, 375 (No. 9,600) (SDNY 1844) (jury awarded damages of $625); Dwight v. Appleton, 8 F. Cas. 183, 185 (No. 4,215) (SDNY 1843) (jury awarded damages of $2,000).

Columbia does not dispute this historical evidence. In fact, Columbia makes no attempt to draw an analogy between an action for statutory damages under § 504(c) and any historical cause of action — including those actions for monetary relief that we have characterized as equitable, such as actions for disgorgement of improper profits. See Teamsters v. Terry, 494 U. S. 558, 570-571 (1990); Tull v. United States, 481 U. S., at 424. Rather, Columbia merely contends that statutory damages are clearly equitable in nature.

We are not persuaded. We have recognized the “general rule” that monetary relief is legal, Teamsters v. Terry, supra, at 570, and an award of statutory damages may serve purposes traditionally associated with legal relief, such as compensation and punishment. See Curtis v. Loether, 415 U. S., at 196 (actual damages are “traditional form of relief offered in the courts of law”); Tull v. United States, 481 U. S., at 422 (“Remedies intended to punish culpable individuals ... were issued by courts of law, not courts of equity”). Nor, as we have previously stated, is a monetary remedy rendered equitable simply because it is “not fixed or readily calculable from a fixed formula.” Id., at 422, n. 7. And there is historical evidence that cases involving discretionary monetary relief were tried before juries. See, e. g., Coryell v. Colbaugh, 1 N. J. L. 77 (1791) (jury award of “exemplary damages” in an action on a promise of marriage). Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages.

The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that “by the law the jury are judges of the damages.” Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C. P. 1677). Thus in Dimick v. Schiedt, 293 U. S. 474 (1935), the Court stated that “the common law rule as it existed at the time of the adoption of the Constitution” was that “in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.” Id., at 480 (internal quotation marks and citations omitted). And there is overwhelming evidence that the consistent practice at common law was for juries to award damages. See, e. g., Duke of York v. Pilkington, 2 Show. 246, 89 Eng. Rep. 918 (K. B. 1760) (jury award of £100,000 in a slander action); Wilkes v. Wood, Lofft 1, 19, 98 Eng. Rep. 489, 499 (C. P. 1763) (jury award of £1,000 in an action of trespass); Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763) (upholding jury award of £300 in an action for trespass, assault and imprisonment); Genay v. Norris, 1 S. C. L. 6, 7 (1784) (jury award of £400); Coryell v. Colbaugh, supra (sustaining correctness of jury award of exemplary damages in an action on a promise of marriage); see also K. Redden, Punitive Damages § 2.2, p. 27 (1980) (describing “primacy of the jury in the awarding of damages”).

More specifically, this was the consistent practice in copyright cases. In Hudson & Goodwin v. Patten, 1 Root, at 134, for example, a jury awarded a copyright owner £100 under the Connecticut copyright statute, which permitted damages in an amount double the value of the infringed copy. In addition, juries assessed the amount of damages under the Copyright Act of 1831, even though that statute, like the Copyright Act of 1790, fixed damages at a set amount per infringing sheet. See Backus v. Gould, supra, at 802 (jury awarded damages of $2,069.75); Reed v. Carusi, supra, at 432 (same, but $200); Dwight v. Appleton, supra, at 185 (same, but $2,000); Millett v. Snowden, supra, at 375 (same, but $625).

Relying on Tull v. United States, supra, Columbia contends that the Seventh Amendment does not provide a right to a jury determination of the amount of the award. In Tull, we held that the Seventh Amendment grants a right to a jury trial on all issues relating to liability for civil penalties under the Clean Water Act, 33 U. S. C. §§ 1251, 1319(d), see 481 U. S., at 425, but then went on to decide that Congress could constitutionally authorize trial judges to assess the amount of the civil penalties, see id., at 426-427. According to Columbia, Tull demonstrates that a jury determination of the amount of statutory damages is not necessary “to preserve ‘the substance of the common-law right of trial by jury.’ ” Id., at 426 (quoting Colgrove v. Battin, 413 U. S. 149, 157 (1973)).

In Tull, however, we were presented with no evidence that juries historically had determined the amount of civil penalties to be paid to the Government. Moreover, the awarding of civil penalties to the Government could be viewed as analogous to sentencing in a criminal proceeding. See 481 U. S., at 428 (SCALIA, J., concurring in part and dissenting in part). Here, of course, there is no similar analogy, and there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff. Tull is thus inapposite. As a result, if a party so demands, a jury must determine the actual amount of statutory damages under § 504(e) in order “to preserve ‘the substance of the common-law right of trial by jury/ ” Id., at 426.

* % *

For the foregoing reasons, we hold that the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(e) of the Copyright Act, including the amount itself. The judgment below is reversed, and we remand the case for proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in the judgment.

It is often enough that we must hold an enactment of Congress to be unconstitutional. I see no reason to do so here— not because I believe that jury trial is not constitutionally required (I do not reach that issue), but because the statute can and therefore should be read to provide jury trial.

“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). The Copyright Act of 1976 authorizes statutory damages for copyright infringement “in a sum of not less than $500 or more than $20,000 as the court considers just.” 17 U. S. C. § 504(c). The Court concludes that it is not “fairly possible,” ante, at 345 (internal quotation marks omitted), to read § 504(e) as authorizing jury determination of the amount of those damages. I disagree.

In common legal parlance, the word “court” can mean “[t]he judge or judges, as distinguished from the counsel or jury.” Webster’s New International Dictionary 611 (2d ed. 1949) (def. 10d). But it also has a broader meaning, which includes both judge and jury. See, e. g., ibid. (def. 10b: “The persons duly assembled under authority of law for the administration of justice”); Black’s Law Dictionary 318 (5th ed. 1979) (“. . . A body organized to administer justice, and including both judge and jury”). We held in Lorillard v. Pons, 434 U. S. 575 (1978), that a statute authorizing “the court ... to grant such legal or equitable relief as may be appropriate,” 29 U. S. C. § 626(b), could fairly be read to afford a right to jury trial on claims for backpay under the Age Discrimination in Employment Act of 1967.

As the Court correctly observes, ante, at 347, there was more evidence in Lorillard than there is in the present case that “court” was being used to include the jury. The remedial provision at issue explicitly referred to the “‘powers, remedies, and procedures’ ” of the Fair Labor Standards Act, under which “it was well established that there was a right to a jury trial,” Lorillard, 434 U. S., at 580. The provision’s reference to “legal... relief” also strongly suggested a statutory right to jury trial. Id., at 583. The text of § 504(e) lacks such clear indications that “court” is being used in its broader sense. But their absence hardly demonstrates that the broader reading is not “fairly possible,” e.g., Tull v. United States, 481 U. S. 412, 417, n. 3 (1987). The only significant evidence cited by the Court for that proposition is that the “Copyright Act use[s] the term ‘court’ in contexts generally thought to confer authority on a judge, rather than a jury,” ante, at 346, but “does not use the term ‘court’ in the subsection addressing awards of actual damages and profits, see § 504(b), which generally are thought to constitute legal relief,” ibid. That is a fair observation, but it is not, in my view, probative enough to compel an interpretation that is constitutionally doubtful.

That is at least so in light of contradictory evidence from the statutory history, which the Court chooses to ignore. Section 504(e) is the direct descendant of a remedy created for unauthorized performance of dramatic compositions in an 1856 copyright statute. That statute provided for damages “not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just,” enforced through an “action on the ease or other equivalent remedy.” Act of Aug. 18, 1856, ch. 169, 11 Stat. 138, 139. Because actions on the ease were historically tried at law, it seems clear that this original statute permitted juries to assess such damages. See Lorillard, supra, at 583. Although subsequent revisions omitted the reference to “action[s] on the ease,” they carried forward the language specifying damages “as to the court shall appear to be just.” See Act of July 8,1870, ch. 230, § 101, 16 Stat. 214; Act of Jan. 6,1897, ch. 4, 29 Stat. 482. In 1909, Congress extended those provisions to permit all copyright owners to recover “in lieu of actual damages and profits such damages as to the court shall appear just....” Act of Mar. 4,1909, ch. 320, § 25(b), 35 Stat. 1081. We have recognized that, although the prior statutory damages provisions

“were broadened [in 1909] so as to include other copyrights and the limitations were changed in amount,.. . the principle on which they proceeded — that of committing the amount of damages to be recovered to the court’s discretion and sense of justice, subject to prescribed limitations — was retained. The new provision, like one of the old, says the damages shall be such ‘as to the court shall appear to be just.’ ” L. A. Westermann Co. v. Dispatch Printing Co., 249 U. S. 100, 107 (1919).

If a right to jury trial was consistent with the meaning of the phrase “as to the court... shall appear to be just” in the 1856 statutory damages provision, I see no reason to insist that the phrase “as the court considers just” has a different meaning in that provision’s latest reenactment. “[Wlhere, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard, supra, at 581.

I do not contend that reading “court” to include “jury” is necessarily the best interpretation of this statutory text. The Court is perhaps correct that the indications pointing to a change in meaning from the 1856 statute predominate. As I have written elsewhere, howevez*:

“The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one — the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. ‘Adopt the interpretation that avoids the constitutional doubt if that is the right one’ produces precisely the same result as ‘adopt the right interpretation.’ Rather, the doctrine of constitutional doubt comes into play when the statute is ‘susceptible of’ the problem-avoiding interpretation, Delaware & Hudson Co., 213 U. S., at 408 — when that interpretation is reasonable, though not necessarily the best.” Almendarez-Torres v. United States, ante, at 270 (dissenting opinion).

As the majority’s discussion amply demonstrates, there would be considerable doubt about the constitutionality of § 504(c) if it did not permit jury determination of the amount of statutory damages. Because an interpretation of § 504(e) that avoids the Seventh Amendment question is at least “fairly possible,” I would adopt that interpretation, prevent the invalidation of this statute, and reserve the constitutional issue for another day.

       During the course of the litigation, Columbia dropped all claims against all parties except its copyright claims against Feltner.

       The Court of Appeals vacated and remanded (for further explanation) the District Court’s award of costs and attorney’s fees to Columbia. See 106 F. 3d, at 296.

       Under the 1909 Act, a copyright plaintiff could recover, “in lieu of actual damages and profits, such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph[,] such damages shall not exceed the sum of [$200] nor be less than the sum of [$50], and such damages shall in no other case exceed the sum of [$5,000] nor be less than the sum of [$250] ...” Act of Mar. 4,1909, § 25(b), 35 Stat. 1081 (later amended and codified at 17 U. S. C. § 101(b)).

         The Courts of Appeals have unanimously held that § 504(c) is not susceptible of an interpretation that would avoid the Seventh Amendment question. See, e. g., Cass County Music Co. v. C. H. L. R., Inc., 88 F. 3d 635, 641 (CA8 1996); Video Views, Inc. v. Studio 21, Ltd., 925 F. 2d 1010, 1014 (CA7 1991); Gnossos Music v. Milken Inc., 653 F. 2d 117, 119 (CA4 1981); see also Oboler v. Goldin, 714 F. 2d 211, 213 (CA2 1983); 4 M. Nimmer & D. Nimmer, Nimmer on Copyright § 14.04[C] (1997).

       In addition, a copyright plaintiff may elect statutory damages “at any time before final judgment is rendered.” § 504(c)(1). The parties agree, and we have found no indication to the contrary, that election may occur even after a jury has returned a verdict on liability and an award of actual damages. It is at least unlikely that Congress intended that a jury, having already made a determination of actual damages, should be reconvened to make a determination of statutory damages.

       The Copyright Act of 1790 did not provide for equitable remedies at all, and in Stevens v. Gladding, 17 How. 447 (1855), we held that, even after Congress had provided for equity jurisdiction under the Copyright Act, see Act of Feb. 15, 1819, ch. 19, 3 Stat. 481, the statute’s damages provision could not be enforced through a suit in equity. 17 How., at 455; see also Callaghan v. Myers, 128 U. S. 617, 663 (1888) (Stevens v. Gladding determined that “the penalties given by § 7 of the copyright act of 1831 cannot be enforced in a suit in equity”).

       Section 1319(d) of the Clean Water Act provided that violators of certain sections of the Act “shall be subject to a civil penalty not to exceed $10,000 per day” during the period of the violation. 481 U. S., at 414.

       This portion of our opinion was arguably dicta, for our holding that there was a right to a jury trial on issues relating to liability required us to reverse the lower court's liability determination.

       It should be noted that Tull is at least in tension with Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492 (1829), in which the Court held in light of the Seventh Amendment that a jury must determine the amount of compensation for improvements to real estate, and with Dimick v. Schiedt, 293 U. S. 474 (1935), in which the Court held that the Seventh Amendment bars the use of additur.

       As we have noted, even under the Statute of Anne and the Copyright Act of 1790, the amount awarded to the Government (“one Moiety”) was determined by a jury.


author: Justice Ginsburg

text:
    UNITED STATES v. UNITED STATES SHOE CORP.
    No. 97-372.
    Argued March 4, 1998
    Decided March 31, 1998

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

      Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Kent L. Jones, David M. Cohen, Todd M. Hughes, and Lara Levinson.

      James R. Atwood argued the cause for respondent. With him on the brief were Brian S. Goldstein, Steven S. Weiser, Laurence M. Friedman, Paul A. Horowitz, and Robert A. Long, Jr.

        Hardy Myers, Attorney General of Oregon, Michael D. Reynolds, Solicitor General, David Schuman, Deputy Attorney General, and Robert M. Atkinson, Assistant Attorney General, filed a brief for the State of Oregon as amicus cwriae urging reversal.
      Briefs of amici curiae urging affirmance were filed for Addison Wesley Longman et al. by Carlos Rodriguez and Todd C. Fineberg; for the Aluminum Co. of America et al. by Melvin S. Schwechter, John C. Cleary, and Julie A Coletti; for Baxter Healthcare Corp. et al. by Mark S. Zolno and Michael E. Roll; for Boise Cascade et al. by Steven P. Florsheim, Robert B. Silverman, and Erik D. Smithweiss; for Cobe Laboratories, Inc., et al. by Lynn S. Baker, Thomas E. Johnson, and Gregory W. Bowman; for General Chemical Corp. et al. by Patrick D. Gill, John S. Rode, and Elea-nore Kelly-Kobayashi; for the National Industrial Transportation League by Nicholas J. DiMichael; and for Texaco Refining and Marketing, Inc., et al. by Steven H. Becker and Charles H. Critchlow.

      Briefs of amici curiae were filed for Amoco Chemical Co. by Robert E. Burke and Christopher E. Pey; for Arctic Cat, Inc., et al. by Robert J. Hennessey; for New Holland North America, Inc., et al. by Munford Page Hall II and John B. Rehm; and for Totes-Isotoner Corp. et al. by John M. Peterson and George W. Thompson.

   Justice Ginsburg

delivered the opinion of the Court.

The Export Clause of the Constitution states: “No Tax or Duty shall be laid on Articles exported from any State.’’ U. S. Const., Art. I, §9, cl. 5. We held in United States v. International Business Machines Corp., 517 U. S. 843 (1996) (IBM), that the Export Clause categorically bars Congress from imposing any tax on exports. The Clause, however, does not rule out a “user fee,” provided that the fee lacks the attributes of a generally applicable tax or duty and is, instead, a charge designed as compensation for Government-supplied services, facilities, or benefits. See Pace v. Burgess, 92 U. S. 372, 375-376 (1876). This case presents the question whether the Harbor Maintenance Tax (HMT), 26 U. S. C. 14461(a), as applied to goods loaded at United States ports for export, is an impermissible tax on exports or, instead, a legitimate user fee. We hold, in accord with the Federal Circuit, that the tax, which is imposed on an ad valo-rem basis, is not a fair approximation of services, facilities, or benefits furnished to the exporters, and therefore does not qualify as a permissible user fee.

I

The HMT, enacted as part of the Water Resources Development Act of 1986, 26 U. S. C. §§4461-4462, imposes a uniform charge on shipments of commercial cargo through the Nation’s ports. The charge is currently set at 0.125 percent of the cargo’s value. Exporters, importers, and domestic shippers are liable for the HMT, § 4461(c)(1), which is imposed at the time of loading for exports and unloading for other shipments, § 4461(c)(2). The HMT is collected by the Customs Service and deposited in the Harbor Maintenance Trust Fund (Fund). Congress may appropriate amounts from the Fund to pay for harbor maintenance and development projects, including costs associated with the St. Lawrence Seaway, or related expenses. §9505.

Respondent United States Shoe Corporation (U. S. Shoe) paid the HMT for articles the company exported during the period April to June 1994 and then filed a protest with the Customs Service alleging the unconstitutionality of the toll to the extent it applies to exports. The Customs Service responded with a form letter stating that the HMT is a statutorily mandated fee assessment on port users, not an unconstitutional tax on exports. On November 3,1994, U. S. Shoe brought this action against the Government in the Court of International Trade (CIT). The company sought a refund on the ground that the HMT is unconstitutional as applied to exports.

Sitting as a three-judge court, the CIT held that its jurisdiction was properly invoked under 28 U. S. C. § 1581(f); on the merits, the CIT agreed with U. S. Shoe that the HMT qualifies as a tax. 907 F. Supp. 408 (1995). Rejecting the Government’s characterization of the HMT as a user fee rather than a tax, the CIT reasoned: “The Tax is assessed ad valorem directly upon the value of the cargo itself, not upon any services rendered for the cargo .... Congress could not have imposed the Tax any closer to exportation, or more immediate to the articles exported.” Id., at 418. Relying on the Export Clause, the CIT entered summary judgment for U. S. Shoe.

The Court of Appeals for the Federal Circuit, sitting as a five-judge panel, affirmed. 114 F. 3d 1564 (1997). On auxiliary questions, the Federal Circuit upheld the CIT’s exercise of jurisdiction under § 1581(f) and agreed with the lower court that the HMT applied to goods in export transit. Concluding that the HMT is not based on a fair approximation of port use, the Federal Circuit also agreed that the HMT imposes a tax, not a user fee. In making this determination, the Court of Appeals emphasized that the HMT does not depend on the amount or manner of port use, but is determined solely by the value of cargo. Judge Mayer dissented; in his view, Congress properly designed the HMT as a user fee, a toll on shippers that supplies funds not for the general support of government, but exclusively for the facilitation of commercial navigation.

Numerous cases challenging the constitutionality of the HMT as applied to exports are currently pending in the CIT and the Court of Federal Claims. We granted certiorari, 522 U. S. 944 (1997), to review the Federal Circuit’s determination that the HMT violates the Export Clause.

II

As an initial matter, we conclude that the CIT properly entertained jurisdiction in this case. The complaint alleged exclusive original jurisdiction in that tribunal under 28 U. S. C. § 1581(a) or, alternatively, § 1581(i). App. 26. We agree with the CIT and the Federal Circuit that § 1581(i) is the applicable jurisdictional prescription. The key directive is stated in 26 U. S. C. § 4462(f)(2), which instructs that for jurisdictional purposes, the HMT “shall be treated as if such tax were a customs duty.”

Section 1581(a) surely concerns customs duties. It confers exclusive original jurisdiction on the CIT in “any civil action commenced to contest the [Customs Service’s] denial of a protest.” A protest, as indicated in 19 U. S. C. § 1514, is an essential prerequisite when one challenges an actual Customs decision. As to the HMT, however, the Federal Circuit correctly noted that protests are not pivotal, for Customs “performs no active role,” it undertakes “no analysis [or adjudication],” “issues no directives,” “imposes no liabilities”; instead, Customs “merely passively collects” HMT payments. 114 F. 3d, at 1569.

Section 1581(i) describes the CIT’s residual jurisdiction over

“any civil action commenced against the United States ... that arises out of any law of the United States providing for —
“(1) revenue from imports or tonnage;
“(4) administration and enforcement with respect to the matters referred to in paragraphs (1) — (3) of this subsection . . . .”

This dispute, as the Federal Circuit stated, “involve[s] the ‘administration and enforcement’ of a law providing for revenue from imports because the HMT statute, although applied to exports here, does apply equally to imports.” 114 F. 3d, at 1571. True, § 1581(i) does not use the word “exports.” But that is hardly surprising in view of the Export Clause, which confines customs duties to imports. Revenue from imports and revenue from customs duties are thus synonymous in this setting. In short, as the CIT correctly concluded and the Federal Circuit correctly affirmed, “Congress [in § 4462(f)(2)] directed [that] the [HMT] be treated as a customs duty for purposes of jurisdiction. Such duties, by their very nature, provide for revenue from imports, and are encompassed within [§ ]1581(i)(1).” 907 F. Supp., at 421. Accordingly, CIT jurisdiction over controversies regarding the administration and enforcement of the HMT accords with §1581(i)(4).

Ill

Two Terms ago, in IBM, this Court considered the question whether a tax on insurance premiums paid to protect exports against loss violated the Export Clause. Distinguishing ease law developed under the Commerce Clause, 517 U. S., at 850-852, and the Import-Export Clause, id., at 857-861, the Court held that the Export Clause allows no room for any federal tax, however generally applicable or nondiscriminatory, on goods in export transit. Before this Court’s decision in IBM, the Government argued that the HMT, even if characterized as a “tax” rather than a “user fee,” should survive constitutional review “because it applies without discrimination to exports, imports and domestic commerce alike.” Reply Brief for United States 9, n. 2. Recognizing that IBM “rejected an indistinguishable contention,” the Government now asserts only that HMT is “ ‘a permissible user fee,’” Reply Brief for United States 9, n. 2, a toll within the tolerance of Export Clause precedent. Adhering to the Court’s reasoning in IBM, we reject the Government’s current position.

The HMT bears the indicia of a tax. Congress expressly described it as “a tax on any port use,” 26 U. S. C. § 4461(a) (emphasis added), and codified the HMT as part of the Internal Revenue Code. In like vein, Congress provided that, for administrative, enforcement, and jurisdictional purposes, the HMT should be treated “as if [it] were a customs duty.” §§ 4462(f)(1), (2). However, “we must regard-things rather than names,” Pace v. Burgess, 92 U. S., at 376, in determining whether an imposition on exports ranks as a tax. The crucial question is whether the HMT is a tax on exports in operation as well as nomenclature or whether, despite the label Congress has put on it, the exaction is instead a bona fide user fee.

In arguing that the HMT constitutes a user fee, the Government relies on our decisions in United States v. Sperry Corp., 493 U. S. 52 (1989), Massachusetts v. United States, 435 U. S. 444 (1978), and Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972). In those cases, this Court upheld flat and ad valorem charges as valid user fees. See United States v. Sperry Corp., 493 U. S., at 62 (lVz percent ad valorem fee applied to awards certified by the Iran-United States Claims Tribunal qualifies as a user fee and is not so excessive as to violate the Takings Clause); Massachusetts v. United States, 435 U, S., at 463-467 (flat federal registration fee imposed annually on all civil aircraft meets genuine user fee standards and, as applied to state-owned aircraft, does not dishonor State’s immunity from federal taxation); Evansville-Vanderburgh Airport Authority, 405 U. S., at 717-721 (flat charge for each passenger enplaning, levied for the maintenance of State’s airport facilities, does not run afoul of the dormant Commerce Clause). Those decisions involved constitutional provisions other than the Export Clause, however, and thus do not govern here.

IBM plainly stated that the Export Clause’s simple, direct, unqualified prohibition on any taxes or duties distinguishes it from other constitutional limitations on governmental taxing authority. The Court there emphasized that the “text of the Export Clause ... expressly prohibits Congress from laying any tax or duty on exports.” 517 U. S., at 852; see also id., at 861 (“[T]he Framers sought to alleviate ... concerns [that Northern States would tax exports to the disadvantage of Southern States] by completely denying to Congress the power to tax exports at all.”). Accordingly, the Court reasoned in IBM, “[o]ur decades-long struggle over the meaning of the nontextual negative command of the dormant Commerce Clause does not lead to the conclusion that our interpretation of the textual command of the Export Clause is equally fluid.” Id., at 851; see also id., at 857 (“We have good reason to hesitate before adopting the analysis of our recent Import-Export Clause cases into our Export Clause jurisprudence_[MJeaningfiil textual differences exist [between the two Clauses] and should not be overlooked.”). In Sperry, moreover, we noted that the Takings Clause imposes fewer constraints on user fees than does the dormant Commerce Clause. See 493 U. S., at 61, n. 7 (analysis under Takings Clause is less “exacting” than under the dormant Commerce Clause). A fortiori, therefore, the Takings Clause is less restrictive than the Export Clause.

The guiding precedent for determining what constitutes a bona fide user fee in the Export Clause context remains our time-tested decision in Pace. Pace involved a federal excise tax on tobacco. Congress provided that the tax would not apply to tobacco intended for export. To prevent fraud, however, Congress required that tobacco the manufacturer planned to export carry a stamp indicating that intention. Each stamp cost 25 cents (later 10 cents) per package of tobacco. Congress did not limit the quantity or value of the tobacco packaged for export or the size of the stamped package; “[t]hese were unlimited, except by the discretion of the exporter or the convenience of handling.” 92 U. S., at 375.

The Court upheld the charge, concluding that it was “in no sense a duty on exportation,” but rather “compensation given for services [in fact] rendered.” Ibid. In so ruling, the Court emphasized two characteristics of the charge: It “bore no proportion whatever to the quantity or value of the package on which [the stamp] was affixed”; and the fee was not excessive, taking into account the cost of arrangements needed both “to give to the exporter the benefit of exemption from taxation, and... to secure... against the perpetration of fraud.” Ibid.

Pace establishes that, under the Export Clause, the connection between a service the Government renders and the compensation it receives for that service must be closer than is present here. Unlike the stamp charge in Pace, the HMT is determined entirely on an ad valorem basis. The value of export cargo, however, does not correlate reliably with the federal harbor services used or usable by the exporter. As the Federal Circuit noted, the extent and manner of port use depend on factors such as the size and tonnage of a vessel, the length of time it spends in port, and the services it requires, for instance, harbor dredging. See 114 F. 3d, at 1572.

In sum, if we are “to guard against... the imposition of a [tax] under the pretext of fixing a fee,” Pace v. Burgess, 92 U. S., at 376, and resist erosion of the Court’s decision in IBM, we must hold that the HMT violates the Export Clause as applied to exports. This does not mean that exporters are exempt from any and all user fees designed to defray the cost of harbor development and maintenance. It does mean, however, that such a fee must fairly match the exporters’ use of port services and facilities.

For the foregoing reasons, the judgment of the Court of Appeals for the Federal Circuit is

Affirmed.

       The Government does not here challenge the determination that the HMT applies to goods in export transit.

       According to the Government, some 4,000 cases raising this claim are currently stayed in the GIT, with more than 100 additional cases stayed in the Court of Federal Claims. See Brief for United States 4.

       Because we determine that the CIT has exclusive jurisdiction over challenges to the HMT wider § 1581(i)(4), it follows that the Court of Federal Claims lacks jurisdiction over the challenges to the HMT currently pending there. See 28 U. S. C. § 1491(b). The plaintiffs in these challenges may invoke § 1631, which authorizes intereourt transfers, when “in the interest of justice,” to cure want of jurisdiction. See also § 610 (as used in Title 28, the term “court” includes the Court of Federal Claims and the CIT).


author: Per Curiam. Justice Stevens, Justice Ginsburg, Justice Breyer,

text:
    BREARD v. GREENE, WARDEN
    No. 97-8214 (A-732).
    Decided April 14, 1998

      Together with No. 97-1390 (A-738), Republic of Paraguay et al. v. Gilmore, Governor of Virginia, et al., on application for stay or injunction and on petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit, No. 97-8660 (A-767), In re Breard, on application for stay and on petition for writ of habeas corpus, No. 125, Orig. (A-771), Republic of Paraguay et al. v. Gilmore, Governor of Virginia, et al., on application for temporary restraining order or preliminary injunction and on motion for leave to file a bill of complaint.

   Per Curiam.

Angel Francisco Breard is scheduled to be executed by the Commonwealth of Virginia this evening at 9 p.m. Breard, a citizen of Paraguay, came to the United States in 1986, at the age of 20. In 1992, Breard was charged with the attempted rape and capital murder of Ruth Dickie. At his trial in 1993, the State presented overwhelming evidence of guilt, including semen found on Dickie’s body matching Breard’s DNA profile and hairs on Dickie’s body identical in all microscopic characteristics to hair samples taken from Breard. Breard chose to take the witness stand in his defense. During his testimony, Breard confessed to killing Dickie, but explained that he had only done so because of a Satanic curse placed on him by his father-in-law. Following a jury trial in the Circuit Court of Arlington County, Virginia, Breard was convicted of both charges and sentenced to death. On appeal, the Virginia Supreme Court affirmed Breard’s convictions and sentences, Breard v. Commonwealth, 248 Va. 68, 445 S. E. 2d 670 (1994), and we denied certiorari, 513 U. S. 971 (1994). State collateral relief was subsequently denied as well.

Breard then filed a motion for habeas, relief under 28 U. S. C. §2254 in Federal District Court on August 20, 1996. In that motion, Breard argued for the first time that his convictions and sentences should be overturned because of alleged violations of the Vienna Convention on Consular Relations (Vienna Convention), April 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, at the time of his arrest. Specifically, Breard alleged that the Vienna Convention was violated when the arresting authorities failed to inform him that, as a foreign national, he had the right to contact the Paraguayan Consulate. The District Court rejected this claim, concluding that Breard procedurally defaulted the claim when he failed to raise it in state court and that Breard could not demonstrate cause and prejudice for this default. Breard v. Netherland, 949 F. Supp. 1255, 1266 (ED Va. 1996). The Fourth Circuit affirmed. Breard v. Pruett, 134 F. 3d 615, 620 (1998). Breard has petitioned this Court for a writ of certiorari.

In September 1996, the Republic of Paraguay, the Ambassador of Paraguay to the United States, and the Consul General of Paraguay to the United States (collectively Paraguay) brought suit in Federal District Court against certain Virginia officials, alleging that their separate rights under the Vienna Convention had been violated by the Commonwealth’s failure to inform Breard of his rights under the treaty and to inform the Paraguayan Consulate of Breard’s arrest, convictions, and sentences. In addition, the Consul General asserted a parallel claim under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging a denial of his rights under the Vienna Convention. The District Court concluded that it lacked subject-matter jurisdiction over these suits because Paraguay was not alleging a “continuing violation of federal law” and therefore could not bring its claims within the exception to Eleventh Amendment immunity established in Ex parte Young, 209 U. S. 123 (1908). Republic of Paraguay v. Allen, 949 F. Supp. 1269, 1272-1273 (ED Va. 1996). The Fourth Circuit affirmed on Eleventh Amendment grounds. Republic of Paraguay v. Allen, 134 F. 3d 622 (1998). Paraguay has also petitioned this Court for a writ of certiorari.

On April 3, 1998, nearly five years after Breard’s convictions became final, the Republic of Paraguay instituted proceedings against the United States in the International Court of Justice (ICJ), alleging that the United States violated the Vienna Convention at the time of Breard’s arrest. On April 9, the ICJ noted jurisdiction and issued an order requesting that the United States “take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings . . . .” The ICJ set a briefing schedule for this matter, with oral argument likely to be held this November. Breard then filed a petition for an original writ of habeas corpus and a stay application in this Court in order to “enforce” the ICJ’s order. Paraguay filed a motion for leave to file a bill of complaint in this Court, citing this Court’s original jurisdiction over eases “affecting Ambassadors ... and Consuls.” U. S. Const., Art. III, §2.

It is clear that Breard procedurally defaulted his claim, if any, under the ‘Vienna Convention by failing to raise that claim in the state courts. Nevertheless, in their petitions for certiorari, both Breard and Paraguay contend that Breard’s Vienna Convention claim may be heard in federal court because the Convention is the “supreme law of the land” and thus trumps the procedural default doctrine. Pet. for Cert. in No. 97-8214, pp. 15-18; Pet. for Cert, in No. 97-1390, p. 14, n. 8. This argument is plainly incorrect for two reasons.

First, while we should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such, it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State. See Sun Oil Co. v. Wortman, 486 U. S. 717, 723 (1988); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U. S. 694, 700 (1988); Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 539 (1987). This proposition is embodied in the Vienna Convention itself, which provides that the rights expressed in the Convention “shall be exercised in conformity with the laws and regulations of the receiving State,” provided that “said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Article 36(2), [1970] 21 U. S. T., at 101. It is the rule in this country that assertions- of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Wainwright v. Sykes, 433 U. S. 72 (1977). Claims not so raised are considered defaulted. Ibid. By not asserting his Vienna Convention claim in state court, Breard failed to exercise his rights under the Vienna Convention in conformity with the laws of the United States and the Commonwealth of Virginia. Having failed to do so, he cannot raise a claim of violation of those rights now on federal habeas review.

Second, although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply. We have held “that an Act of Congress ... is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.” Reid v. Covert, 354 U. S. 1, 18 (1957) (plurality opinion); see also Whitney v. Robertson, 124 U. S. 190, 194 (1888) (holding that if a treaty and a federal statute conflict, “the one last in date will control the other”). The Vienna Convention — which arguably confers on an individual the right to consular assistance following arrest — has continuously been in effect since 1969. But in 1996, before Breard filed his habeas petition raising claims under the Vienna Convention, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which provides that a habeas petitioner alleging that he is held in violation of “treaties of the United States” will, as a general rule, not be afforded an evidentiary hearing if he “has failed to develop the factual basis of [the] claim in State court proceedings.” 28 U. S. C. §§ 2254(a), (e)(2) (1994 ed., Supp. IV). Breard’s ability to obtain relief based on violations of the Vienna Convention is subject to this subsequently enacted rule, just as any claim arising under the United States Constitution would be. This rule prevents Breard from establishing that the violation of his Vienna Convention rights prejudiced him.' Without a hearing, Breard cannot establish how the Consul would have advised him, how the advice of his attorneys differed from the advice the Consul could have provided, and what factors he considered in electing to reject the plea bargain that the State offered him. That limitation, Breard also argues, is not justified because his Vienna Convention claims were so novel that he could not have discovered them any earlier. Assuming that were true, such novel claims would be barred on habeas review under Teague v. Lane, 489 U. S. 288 (1989).

Even were Breard’s Vienna Convention claim properly raised and proved, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial. Arizona v. Fulminante, 499 U. S. 279 (1991). In this action, no such showing could even arguably be made. Breard decided not to plead guilty and to testify at his own trial contrary to the advice of his attorneys, who were likely far better able to explain the United States legal system to him than any consular official would have been. Breard’s asserted prejudice — that had the Vienna Convention been followed, he would have accepted the State’s offer to forgo the death penalty in return for a plea of guilty— is far more speculative than the claims of prejudice courts routinely reject in those cases where an inmate alleges that his plea of guilty was infected by attorney error. See, e. g., Hill v. Lockhart, 474 U. S. 52, 59 (1985).

As for Paraguay’s suits (both the original action and the case coming to us on petition for certiorari), neither the text nor the history of the Vienna Convention clearly provides a foreign nation a private right of action in United States courts to set aside a criminal conviction and sentence for violation of consular notification provisions. The Eleventh Amendment provides a separate reason why Paraguay’s suit might not succeed. That Amendment’s “fundamental principle” that “the States, in the absence of consent, are immune from suits brought against them ... by a foreign State” was enunciated in Principality of Monaco v. Mississippi, 292 U. S. 313, 329-330 (1934). Though Paraguay claims that its suit is within an exemption dealing with continuing consequences of past violations of federal rights, see Milliken v. Bradley, 433 U. S. 267 (1977), we do not agree. The failure to notify the Paraguayan Consul occurred long ago and has no continuing effect. The causal link present in Milliken is absent in this suit.

Insofar as the Consul General seeks to base his claims on § 1983, his suit is not cognizable. Section 1983 provides a cause of action to any "person within the jurisdiction” of the United States for the deprivation "of any rights, privileges, or immunities secured by the Constitution and laws.” As an initial matter, it is clear that Paraguay is not authorized to bring suit under § 1983. Paraguay is not a “person” as that term is used in § 1983. See Moor v. County of Alameda, 411 U. S. 693, 699 (1973); South Carolina v. Katzenbach, 383 U. S. 301, 323-324 (1966); cf. Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989). Nor is Paraguay “within the jurisdiction” of the United States. And since the Consul General is acting only in his official capacity, he has no greater ability to proceed under § 1983 than does the country he represents. Any rights that the Consul General might have by virtue of the Vienna Convention exist for the benefit of Paraguay, not for him as an individual.

It is unfortunate that this matter comes before us while proceedings are pending before the ICJ that might have been brought to that court earlier. Nonetheless, this Court must decide questions presented to it on the basis of law. The Executive Branch, on the other hand, in exercising its authority over foreign relations may, and in this case did, utilize diplomatic discussion with Paraguay. Last night the Secretary of State sent a letter to the Governor of Virginia requesting that he stay Breard’s execution. If the Governor wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him.

For the foregoing reasons, we deny the petition for an original writ of habeas corpus, the motion for leave to file a bill of complaint, the petitions for certiorari, and the accompanying stay applications filed by Breard and Paraguay.

Statement of Justice Soutee.

I agree with the Court that the lack of any reasonably arguable causal connection between the alleged treaty violations and Breard’s convictions and sentences disentitle him to relief on any theory offered. Moreover, I have substantial doubts that either Paraguay or any official acting for it is a “person” within the meaning of 42 U. S. C. § 1983 and that the Vienna Convention is enforceable in any judicial proceeding now underway. For these reasons, I believe the stay requests should be denied, with the result that Paraguay’s claims will be mooted. Accordingly, I have voted to deny Paraguay’s and Breard’s respective petitions for certio-rari (Nos. 97-1390 and 97-8214), Paraguay’s motion for leave to file a bill of complaint (No. 125, Orig.), Breard’s application for an original writ of habeas corpus (No. 97-8660), and the associated requests for a stay of execution.

Justice Stevens,

dissenting.

The Court of Appeals’ decision denying petitioner Breard’s first application for a federal writ of habeas corpus became final on February 18, 1998. Under this Court’s Rules, a timely petition for a writ of certiorari to review that decision could have been filed as late as May 19, 1998. See Rule 13.1 (“[A] petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by... a United States court of appeals ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment”). Ordinary review of that petition pursuant to our Rules would have given us additional time thereafter to consider its merits in the light of the response filed by the Commonwealth of Virginia. We have, however, been deprived of the normal time for considered deliberation by the Commonwealth’s decision to set the date of petitioner’s execution for today. There is no compelling reason for refusing to follow the procedures that we have adopted for the orderly disposition of noncapital cases. Indeed, the international aspects of this case provide an additional reason for adhering to our established Rules and procedures. I would therefore grant the applications for a stay, and I respectfully dissent from the decision to act hastily rather than with the deliberation that is appropriate in a case of this character.

Justice Ginsburg,

dissenting in No. 97-8214 (A-732).

I would grant the application for a stay of execution in order to consider in the ordinary course the instant petition, Breard’s first federal petition for writ of habeas corpus.

Justice Breyer,

dissenting.

In my view, several of the issues raised here are of sufficient difficulty to warrant less speedy consideration. Breard argues, for example, that the novelty of his Vienna Convention claim is sufficient to create “cause” for his having failed to present that claim to the Virginia state courts. Pet. for Cert. in No. 97-8214, pp. 20-22. He might add that the nature of his claim, were we to aecept it, is such as to create a “watershed rule of criminal procedure,” which might overcome the bar to consideration otherwise posed by Teague v. Lane, 489 U. S. 288, 311 (1989). He additionally says that what the Solicitor General describes as Virginia’s violation of the Convention “prejudiced” him by isolating him at a critical moment from Consular Officials who might have advised him to tiy to avoid the death penalty by pleading guilty. Pet. for Cert. in No. 97-8214, p. 22; see Brief for United States as Amicus Curiae in Nos. 97-1390 and 97-8214, p. 12 (“[T]he Executive Branch has conceded that the Vienna Convention was violated”). I cannot say, without examining the record more fully, that these arguments are obviously without merit. Nor am I willing to accept without fuller briefing and consideration the positions taken by the majority on all of the sometimes difficult issues that the majority addresses.

At the same time, the international aspects of the cases have provided us with the advantage of additional briefing even in the short time available. More time would likely mean additional briefing and argument, perhaps, for example, on the potential relevance of proceedings in an international forum.

Finally, as Justice Stevens points out, Virginia is now pursuing an execution schedule that leaves less time for argument and for Court consideration than the Court’s Rules provide for ordinary cases. Like Justice Stevens, I can find no special reason here to truncate the period of time that the Court’s Rules would otherwise make available.

For these reasons, taken together, I would grant the requested stay of execution and consider the petitions for certiorari in the ordinary course.


author: Justice Scalia

text:
    ATLANTIC MUTUAL INSURANCE CO. v. COMMISSIONER OF INTERNAL REVENUE
    No. 97-147.
    Argued March 2, 1998
    Decided April 21, 1998

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

      George B. Abramowitz argued the cause for petitioner. With him on the briefs were Dermis L. Allen, M. Kristan Rizzolo, John S. Breckinridge, Jr., and James H. Kenworthy.

      Kent L. Jones argued the eause for respondent. With him on the brief were Solicitor General Waxman, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, David I. Pincus, and Edward T Perelmuter.

      Briefs of amid curiae urging reversal were filed for Ambase Corp. by Peter H. Winslow and Gregory K Oyler; and for the American Insurance Association et al. by Matthew J. Zinn, J. Walker Johnson, Craig A Berrington, Allan J. Stein, and Steven C. Elliott.

   Justice Scalia

delivered the opinion of the Court.

Property and casualty insurance companies maintain accounting reserves for “unpaid losses.” Under the Tax Reform Act of 1986, increases in loss reserves that constitute “reserve strengthening” do not qualify for a certain one-time tax benefit. We must decide whether the term “reserve strengthening” reasonably encompasses any increase in reserves, or only increases that result from changes in the methods or assumptions used to compute them.

HH

Atlantic Mutual Insurance Co. is the common parent of an affiliated group of corporations, including Centennial Insurance Co., a property and casualty (PC) insurer. From 1985 to 1993, the two corporations (Atlantic) maintained what insurers call “loss reserves.” Loss reserves are estimates of amounts insurers will have to pay for losses that have been reported but not yet paid, for losses that have been incurred but not yet reported, and for administrative costs of resolving claims.

Before enactment of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085, the Internal Revenue Code gave PC insurers a full deduction for loss reserves as “losses incurred.” In each taxable year, not only losses paid, but the full amount of the loss reserves, reduced by the amount of the loss reserves claimed for the prior taxable year, would be treated as a business expense. 26 U. S. C. §§ 832(b)(5) and (c)(4) (1982 ed.). This designation enabled the PC insurer to take, in effect, a current deduction for future loss payments without adjusting for the “time value of money”— the fact that “ '[a] dollar today is worth more than a dollar tomorrow,’ ” D. Herwitz & M. Barrett, Accounting for Lawyers 221 (2d ed. 1997). Section 1023 of the 1986 Act amended the Code to require PC insurers, for taxable years beginning after December 31,1986, to discount unpaid losses to present value when claiming them as a deduction. 100 Stat. 2399, 2404, 26 U. S. C. §§ 832(b)(5)(A), 846 (1982 ed., Supp. V). Absent a transitional rule, PC insurers would have been left to subtract undiscounted year-end 1986 reserves from discounted year-end 1987 reserves for purposes of computing losses incurred for taxable year 1987 — producing artificially low deductions. The 1986 Act softened this consequence by requiring PC insurers, for purposes of that 1987 tax computation, to discount 1986 reserves as well. 100 Stat. 2404, note following 26 U. S. C. §846.

Because the requirement that PC insurers discount 1986 reserves changed the “method of accounting” for computing taxable income, PC insurers, absent another transitional rule, would have been required to recognize as income the difference between undiscounted and discounted year-end 1986 loss reserves. See 26 U. S. C. § 48.1(a) (1988 ed.). To avoid this consequence, § 1023(e)(3)(A) of the 1986 Act afforded PC insurers a “fresh start,” to wit, an exclusion from taxable income of the difference between undiscounted and discounted year-end 1986 loss reserves. 100 Stat. 2404, note following 26 U. S. C. §846. Of course the greater the 1986 reserves, the greater the exclusion. Section 1023(e)(3)(B) of the 1986 Act foreclosed the possibility that insurers would inflate reserves to manipulate the “fresh start” by excepting “reserve strengthening” from the exclusion:

“(B) Reserve strengthening in years after 1985. — Subparagraph (A) [the fresh-start provision] shall not apply to any reserve strengthening in a taxable year beginning in 1986, and such strengthening shall be treated as occurring in the taxpayer’s 1st taxable year beginning after December 31, 1986.” 100 Stat. 2404, note following 26 U. S. C. § 846.

Regulations promulgated by the Treasury Department set forth rules for determining the amount of “reserve strengthening”:

“(1) In general. The amount of reserve strengthening (weakening) is the amount that is determined under paragraph (c)(2) or (3) to have been added to (subtracted from) an unpaid loss reserve in a taxable year beginning in 1986. For purposes of section 1023(e)(3)(B) of the 1986 Act, the amount of reserve strengthening (weakening) must be determined separately for each unpaid loss reserve by applying the rules of this paragraph (e). This determination is made without regard to the reasonableness of the amount of the unpaid loss reserve and without regard to the taxpayer’s discretion, or lack thereof, in establishing the amount of the unpaid loss reserve....
“(3) Accident years before 1986 — (i) In general For each taxable year beginning in 1986, the amount of reserve strengthening (weakening) for an unpaid loss reserve for an accident year before 1986 is the amount by which the reserve at the end of that taxable year exceeds (is less than)—
“(A) The reserve at the end of the immediately preceding taxable year; reduced by
“(B) Claims paid and loss adjustment expenses paid (“loss payments”) in the taxable year beginning in 1986 with respect to losses that are attributable to the reserve....” Treas. Reg. § 1.846-3(c), 26 CFR § 1.846-3(e) (1997).

In short, any net additions to reserves (with two exceptions not here at issue, § 1.846-3(c)(3)(ii)) constitute “reserve strengthening” under the regulation.

The Commissioner of Internal Revenue determined that Atlantic made net additions to reserves — “reserve strengthening” — during 1986, reducing the “fresh start” entitlement by an amount that resulted in a tax deficiency of $519,987. The Tax Court disagreed, holding that Atlantic had not strengthened its reserves. “Reserve strengthening,” the Tax Court held, refers only to increases in reserves that result from changes in the methods or assumptions used to compute them. (Atlantic’s reserve increases, there is no dispute, did not result from any such change.) The United States Court of Appeals for the Third Circuit reversed the Tax Court, concluding that the Treasury Regulation’s definition of “reserve strengthening” to include any net additions to reserves is based on a permissible construction of the statute. 111 F. 3d 1056 (1997). (It expressly disagreed with the Eighth Circuit’s conclusion in Western National Mutual Insurance Co. v. Commissioner, 65 F. 3d 90 (1995), that the Treasury Regulation is invalid.) We granted certiorari. 522 U. S. 931 (1997).

II

The 1986 Act does not define “reserve strengthening.” Atlantic contends that the term has a plain meaning under the statute: reserve increases attributable to changes in methods or assumptions. If that is what the term plainly means, Atlantic must prevail, “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).

Atlantic contends that the plain meaning of “reserve strengthening” can be discerned, first, from its use in the PC insurance industry. It presented at trial two expert reports which, by “constructing a working definition of the term” that requires “a material change in methodology and/or assumptions,” App. 68, 74, purport to demonstrate that Atlantic “did not strengthen reserves,” id., at 99. Our task, of course, is to determine not what the term ought to mean, but what it does mean. Atlantic’s first expert, before “constructing” a definition, expressly acknowledged that “reserve strengthening” is “not a well-defined PC insurance or actuarial term of art to be found in PC actuarial, accounting, or insurance regulatory literature.” Id., at 60. On this point she was in agreement with the Commissioner’s experts: “In the property-casualty industry the term ‘reserve strengthening’ has various meanings, rather than a single universal meaning,” id., at 124. If the expert reports establish anything, it is that “reserve strengthening” does not have an established meaning in the PC insurance industry.

Atlantic next contends that a plain meaning can be discerned from prior use of the term in life insurance tax legislation. According to Atlantic, the term has its roots in the Life Insurance Company Income Tax Act of 1959, which provided tax consequences for changes in the “basis” for determining life insurance reserves. 73 Stat. 125, 26 U. S. C. § 810(d) (1958 ed., Supp. I). But that provision does not define, or for that matter even use, the term “reserve strengthening.” Though the regulation that implemented the provision uses the term “reserve strengthening” in a caption, Treas. Reg. § 1.810-3(a), 26 CFR § 1.810-3(a) (1997), its text does not mention the term, and one of its Examples speaks only of “reserve strengthening attributable to the change in basis which occurred in 1959,” § 1.810-3(b), Ex. 2. If, as Atlantic argues, “basis” and “assumptions or methodologies” are interchangeable terms, Brief for Petitioner 17, n. 8, and a change in basis is necessary for “reserve strengthening,” it is redundant to say “reserve strengthening attributable to the change in basis which occurred in 1959,” much as it would be to say “a sunburn attributable to the sun in 1959.” On Atlantic’s assumptions, the more natural formulation would have been simply “reserve strengthening in 1959.” Thus, the 1959 Act and implementing regulation suggest, if anything, that a change in basis is a sufficient, but not a necessary, condition for “reserve strengthening.”

Atlantic further contends that the term “reserve strengthening” draws a plain meaning from a provision of the Tax Reform Act of 1984 that accorded a “fresh start” adjustment to life insurance reserves. Div. A, 98 Stat. 758, note following 26 U. S. C. § 801 (1984 Act). That provision, like the “fresh start” adjustment for PC insurers in the 1986 Act, said that the “fresh start” would not apply to reserve strengthening, specifically, “to any reserve strengthening reported for Federal income tax purposes after September 27, 1983, for a taxable year ending before January 1,1984.” 98 Stat. 759. Unlike the 1986 Act, however, the 1984 Act expressly provided that “reserve strengthening” would not be excluded from the “fresh start” if the insurer “employs the reserve practice used for purposes of the most recent annual statement filed before September 27, 1988 ....” Ibid. If, as Atlantic contends, reserve strengthening encompasses only reserve increases that result from a change in reserve practices (viz., change in methods or assumptions), the saving clause is superfluous. Thus, to the extent the definition of “reserve strengthening” in the life insurance context is relevant to its meaning here (which is questionable, see 111 F. 3d, at 1061-1062), the 1984 Act, like the regulations under the 1959 Act, tends to contradict, rather than support, petitioner’s interpretation. We conclude that neither prior legislation nor industry use establishes the plain meaning Atlantic ascribes to “reserve strengthening.”

III

Since the term reserve strengthening is ambiguous, the task that confronts us is to decide, not whether the Treasury Regulation represents the best interpretation of the statute, but whether it represents a reasonable one. See Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 560-561 (1991). We conclude that it does.

As a purely linguistic matter, the phrase is certainly broad enough to embrace all increases in (all “strengthening of”) the amount of the reserve, for whatever reason and from whatever source. Atlantic contends that this interpretation is unreasonable because, in theory, it produces absurd results, as the following example supposedly illustrates: Assume that in 1985 a PC insurer had four case reserves of $500 each (total reserves of $2,000). If two eases settled in 1986 for $750 each ($1,500 total), the remaining loss reserve would be $1,000. Under the regulation, according to Atlantic, the Commissioner would find “reserve strengthening” of $500 (1986 loss reserves ($1,000) less (first year reserves ($2,000) less second year payments ($1,500))), even though reserves did not increase. The Commissioner denies this consequence, contending that under the stipulation in this ease the increase in the reserve would be “reduced to zero” by an offsetting adjustment when the payment is made, and that adjustments in the IBNR reserve (reserve for claims “incurred but not reported”) may result from payments in excess of prior reserve amounts, offsetting changes in other reserves. Brief for Respondent 36-39.

We need not resolve that dispute, because we agree with the Commissioner that Atlantic’s horrific example is in any event unrealistic. The property and casualty insurer that had only four cases would not be in business very long, with or without the benefit of the tax adjustment — or if he would, his talents could be put to better use in Las Vegas. The whole point of the insurance business is to spread the insured risk over a large number of eases, where experience and the law of probabilities can be relied upon. And where hundreds (or more likely thousands) of claims are involved, claims resolved for less than estimated reserves will tend to offset claims that settle for more than estimated reserves. See Notice of Proposed Rulemaking Discounted Unpaid Losses, PI-139-86, 1991-2 Cum. Bull. 946, 947 (“For most unpaid loss reserves ... any potential inaccuracies are likely to offset each other in the aggregate”). There may, to be sure, be some discrepancy in one direction or the other, but it would not approach the relative proportions claimed by Atlantic.

It should be borne in mind that the provision at issue here is a limitation upon an extraordinary deduction accorded to PC insurers. There was certainly no need for that deduction to be microscopically fair, and the interpretation adopted by the Treasury Regulation seems to us a reasonable accommodation — and one that the statute very likely intended — of the competing interests of fairness, administra-bility, and avoidance of abuse.

Because the Treasury Regulation represents a reasonable interpretation of the term “reserve strengthening,” we affirm the judgment of the Court of Appeals.

It is so ordered.