source: Caselaw Access Project

author: Justice Ginsburg

license: Public Domain

text:
    IOWA v. TOVAR
    No. 02-1541.
    Argued January 21, 2004
    Decided March 8, 2004

      Thomas J. Miller, Attorney General of Iowa, argued the cause for petitioner. With him on the briefs were Douglas R. Marek, Deputy Attorney General, and Darrel Mullins, Assistant Attorney General.

      Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.

      Theresa R. Wilson, Iowa State Assistant Appellate Defender, argued the cause and filed a brief for respondent.

       Briefs of amici curiae urging reversal were filed for the State of Colorado et al. by Ken Salazar, Attorney General of Colorado, Alan Gilbert, Solicitor General, John D. Seidel, Assistant Attorney General, Gene C. Schaerr, and Robert Klinck, by Christopher L. Morano, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Gregg D. Renkes of Alaska, Bill Lockyer of California, Charles J. Crist of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Phill Kline of Kansas, Richard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, Thomas F Reilly of Massachusetts, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Patricia A Madrid of New Mexico, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming; and for the National District Attorneys Association by Stephanos Bibas and James D. Polley IV.

      Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by Steven Duke and Lisa Kemler; and for the National Legal Aid & Defender Association et al. by Andrea D. Lyon, Emily Hughes, Steven A Greenberg, and Robert R. Rigg.

   Justice Ginsburg

delivered the opinion of the Court.

The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process. Maine v. Moulton, 474 U. S. 159, 170 (1985); United States v. Wade, 388 U. S. 218, 224 (1967). The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a “critical stage” at which the right to counsel adheres. Argersinger v. Hamlin, 407 U. S. 25, 34 (1972); White v. Maryland, 373 U. S. 59, 60 (1963) (per curiam). Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a “knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.” Brady v. United States, 397 U. S. 742, 748 (1970). This case concerns the extent to which a trial judge, before accepting a guilty plea from an uncounseled defendant, must elaborate on the right to representation.

Beyond affording the defendant the opportunity to consult with counsel prior to entry of a plea and to be assisted by counsel at the plea hearing, must the court, specifically: (1) advise the defendant that “waiving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked”; and (2) “admonis[h]” the defendant “that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty”? 656 N. W. 2d 112, 121 (Iowa 2003). The Iowa Supreme Court held both warnings essential to the “knowing and intelligent” waiver of the Sixth Amendment right to the assistance of counsel. Ibid.

We hold that neither warning is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.

I

On November 2, 1996, respondent Felipe Edgardo Tovar, then a 21-year-old college student, was arrested in Ames, Iowa, for operating a motor vehicle while under the influence of alcohol (OWI). See Iowa Code §321J.2 (1995). An intoxilyzer test administered the night of Tovar’s arrest showed he had a blood alcohol level of 0.194. App. 24. The arresting officer informed Tovar of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Tovar signed a form stating that he waived those rights and agreed to answer questions. Iowa State Univ. Dept. of Public Safety, OWI Supplemental Report 3 (Nov. 2,1996), Lodging of Petitioner; Iowa State Univ. Dept. of Public Safety, Rights Warnings (Nov. 2, 1996), Lodging of Petitioner.

Some hours after his arrest, Tovar appeared before a judge in the Iowa District Court for Story County. The judge indicated on the initial appearance form that Tovar appeared without counsel and waived application for court-appointed counsel. Initial Appearance in No. OWCR 23989 (Nov. 2, 1996), Lodging of Petitioner. The judge also marked on the form’s checklist that Tovar was “informed of the charge and his . . . rights and receive[d] a copy of the Complaint.” Ibid. Arraignment was set for November 18, 1996. In the interim, Tovar was released from jail.

At the November 18 arraignment, the court’s inquiries of Tovar began: “Mr. Tovar appears without counsel and I see, Mr. Tovar, that you waived application for a court appointed attorney. Did you want to represent yourself at today’s hearing?” App. 8-9. Tovar replied: “Yes, sir.” Id., at 9. The court soon after asked: “[H]ow did you wish to plead?” Tovar answered: “Guilty.” Ibid. Tovar affirmed that he had not been promised anything or threatened in any way to induce him to plead guilty. Id., at 13-14.

Conducting the guilty plea colloquy required by the Iowa Rules of Criminal Procedure, see Iowa Rule Crim. Proc. 8 (1992), the court explained that, if Tovar pleaded not guilty, he would be entitled to a speedy and public trial by jury, App. 15, and would have the right to be represented at that trial by an attorney, who “could help [Tovar] select a jury, question and cross-examine the State’s witnesses, present evidence, if any, in [his] behalf, and make arguments to the judge and jury on [his] behalf,” id., at 16. By pleading guilty, the court cautioned, “not only [would Tovar] give up [his] right to a trial [of any kind on the charge against him], [he would] give up [his] right to be represented by an attorney at that trial.” Ibid. The court further advised Tovar that, if he entered a guilty plea, he would relinquish the right to remain silent at trial, the right to the presumption of innocence, and the right to subpoena witnesses and compel their testimony. Id., at 16-19.

Turning to the particular offense with which Tovar had been charged, the court informed him that an OWI conviction carried a maximum penalty of a year in jail and a $1,000 fine, and a minimum penalty of two days in jail and a $500 fine. Id., at 20. Tovar affirmed that he understood his exposure to those penalties. Ibid. The court next explained that, before accepting a guilty plea, the court had to assure itself that Tovar was in fact guilty of the charged offense. Id., at 21-22. To that end, the court informed Tovar that the OWI charge had only two elements: first, on the date in question, Tovar was operating a motor vehicle in the State of Iowa; second, when he did so, he was intoxicated. Id., at 23. Tovar confirmed that he had been driving in Ames, Iowa, on the night he was apprehended and that he did not dispute the results of the intoxilyzer test administered by the police that night, which showed that his blood alcohol level exceeded the legal limit nearly twice over. Id., at 23-24.

After the plea colloquy, the court asked Tovar if he still wished to plead guilty, and Tovar affirmed that he did. Id., at 27-28. The court then accepted Tovar’s plea, observing that there was “a factual basis” for it, and that Tovar had made the plea “voluntarily, with a full understanding of [his] rights, [and] ... of the consequences of [pleading guilty].” Id., at 28.

On December 30, 1996, Tovar appeared for sentencing on the OWI charge and, simultaneously, for arraignment on a subsequent charge of driving with a suspended license. Id., at 45-46; see Iowa Code §321J.21 (1995). Noting that Tovar was again in attendance without counsel, the court inquired: “Mr. Tovar, did you want to represent yourself at today’s hearing or did you want to take some time to hire an attorney to represent you?” App. 46. Tovar replied that he would represent himself. Ibid. The court then engaged in essentially the same plea colloquy on the suspension charge as it had on the OWI charge the previous month. Id., at 48-51. After accepting Tovar’s guilty plea on the suspension charge, the court sentenced him on both counts: For the OWI conviction, the court imposed the minimum sentence of two days in jail and a $500 fine, plus a surcharge and costs; for the suspension conviction, the court imposed a $250 fine, plus a surcharge and costs. Id., at 55.

On March 16,1998, Tovar was convicted of OWI for a second time. He was represented by counsel in that proceeding, in which he pleaded guilty. Record 60; see App. to Pet. for Cert. 24, n. 1.

On December 14, 2000, Tovar was again charged with OWI, this time as a third offense, see Iowa Code §321J.2 (1999), and additionally with driving while license barred, see §321.561. Iowa law classifies first-offense OWI as a serious misdemeanor and second-offense OWI as an aggravated misdemeanor. §§321J.2(2)(a)-(7>). Third-offense OWI, and any OWI offenses thereafter, rank as class “D” felonies. §321J.2(2)(c). Represented by an attorney, Tovar pleaded not guilty to both December 2000 charges. Record 55.

In March 2001, through counsel, Tovar filed a motion for adjudication of law points; the motion urged that Tovar’s first OWI conviction, in 1996, could not be used to enhance the December 2000 OWI charge from a second-offense aggravated misdemeanor to a third-offense felony. App. 3-5. Significantly, Tovar did not allege that he was unaware at the November 1996 arraignment of his right to counsel prior to pleading guilty and at the plea hearing. Instead, he maintained that his 1996 waiver of counsel was invalid — not “full knowing, intelligent, and voluntary” — because he “was never made aware by the court... of the dangers and disadvantages of self-representation.” Id., at 3-4.

The court denied Tovar’s motion in May 2001, explaining: “Where the offense is readily understood by laypersons and the penalty is not unduly severe, the duty of inquiry which is imposed upon the court is only that which is required to assure an awareness of [the] right to counsel and a willingness to proceed without counsel in the face of such awareness.” App. to Pet. for Cert. 36-37 (brackets in original). Tovar then waived his right to a jury trial and was found guilty by the court of both the OWI third-offense charge and driving while license barred. Id., at 33. Four months after that adjudication, Tovar was sentenced. On the OWI third-offense charge, he received a 180-day jail term, with all but 30 days suspended, three years of probation, and a $2,500 fine plus surcharges and costs. App. 70-71. For driving while license barred, Tovar received a 30-day jail term, to run concurrently with the OWI sentence, and a suspended $500 fine. Id., at 71.

The Iowa Court of Appeals affirmed, App. to Pet. for Cert. 23-30, but the Supreme Court of Iowa, by a 4-to-3 vote, reversed and remanded for entry of judgment without consideration of Tovar’s first OWI conviction, 656 N. W. 2d 112 (2003). Iowa’s highest court acknowledged that “the dangers of proceeding pro se at a guilty plea proceeding will be different than the dangers of proceeding pro se at a jury trial, [therefore] the inquiries made at these proceedings will also be different.” Id., at 119. The court nonetheless held that the colloquy preceding acceptance of Tovar’s 1996 guilty plea had been constitutionally inadequate, and instructed dispositively:

“[A] defendant such as Tovar who chooses to plead guilty without the assistance of an attorney must be advised of the usefulness of an attorney and the dangers of self-representation in order to make a knowing and intelligent waiver of his right to counsel.... [T]he trial judge [must] advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked. The defendant should be admonished that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty. In addition, the court must ensure the defendant understands the nature of the charges against him and the range of allowable punishments.” Id., at 121.

We granted certiorari, 539 U. S. 987 (2003), in view of the division of opinion on the requirements the Sixth Amendment imposes for waiver of counsel at a plea hearing, compare, e. g., United States v. Akins, 276 F. 3d 1141, 1146-1147 (CA9 2002), with State v. Cashman, 491 N. W. 2d 462, 465-466 (S. D. 1992), and we now reverse the judgment of the Iowa Supreme Court.

II

The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all “critical stages” of the criminal process. See, e. g., Maine v. Moulton, 474 U. S., at 170; United States v. Wade, 388 U. S., at 224. A plea hearing qualifies as a “critical stage.” White v. Maryland, 373 U. S., at 60. Because Tovar received a two-day prison term for his 1996 OWI conviction, he had a right to counsel both at the plea stage and at trial had he elected to contest the charge. Argersinger v. Hamlin, 407 U. S., at 34, 37.

A person accused of crime, however, may choose to forgo representation. While the Constitution “does not force a lawyer upon a defendant,” Adams v. United States ex rel. McCann, 317 U. S. 269, 279 (1942), it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent, see Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Tovar contends that his waiver of counsel in November 1996, at his first OWI plea hearing, was insufficiently informed, and therefore constitutionally invalid. In particular, he asserts that the trial judge did not elaborate on the value, at that stage of the case, of an attorney’s advice and the dangers of self-representation in entering a plea. Brief for Respondent 15.

We have described a waiver of counsel as intelligent when the defendant “knows what he is doing and his choice is made with eyes open.” Adams, 317 U. S., at 279. We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. See Johnson, 304 U. S., at 464.

As to waiver of trial counsel, we have said that before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead. Faretta v. California, 422 U. S. 806 (1975), is instructive. The defendant in Faretta resisted counsel’s aid, preferring to represent himself. The Court held that he had a constitutional right to self-representation. In recognizing that right, however, we cautioned: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing____” Id., at 835 (internal quotation marks omitted).

Later, in Patterson v. Illinois, 487 U. S. 285 (1988), we elaborated on “the dangers and disadvantages of self-representation” to which Faretta referred. “[A]t trial,” we observed, “counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine witnesses effectively ..., object to improper prosecution questions, and much more.” 487 U. S., at 299, n. 13. Warnings of the pitfalls of proceeding to trial without counsel, we therefore said, must be “rigorous[ly]” conveyed. Id., at 298. We clarified, however, that at earlier stages of the criminal process, a less searching or formal colloquy may suffice. Id., at 299.

Patterson concerned postindictment questioning by police and prosecutor. At that stage of the case, we held, the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), adequately informed the defendant not only of his Fifth Amendment rights, but of his Sixth Amendment right to counsel as well. 487 U. S., at 293. Miranda warnings, we said, effectively convey to a defendant his right to have counsel present during questioning. In addition, they inform him of the “ultimate adverse consequence” of making uncounseled admissions, i. e., his statements may be used against him in any ensuing criminal proceeding. 487 U. S., at 293. The Miranda warnings, we added, “also sufficed ... to let [the defendant] know what a lawyer could ‘do for him,’ ” namely, advise him to refrain from making statements that could prove damaging to his defense. 487 U. S., at 294.

Patterson describes a “pragmatic approach to the waiver question,” one that asks “what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage,” in order “to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized.” Id., at 298. We require less rigorous warnings pretrial, Patterson explained, not because pretrial proceedings are “less important” than trial, but because, at that stage, “the full dangers and disadvantages of self-representation . . . are less substantial and more obvious to an accused than they are at trial.” Id., at 299 (citation and internal quotation marks omitted).

In Tovar’s case, the State maintains that, like the Miranda warnings we found adequate in Patterson, Iowa’s plea colloquy suffices both to advise a defendant of his right to counsel, and to assure that his guilty plea is informed and voluntary. Brief for Petitioner 20; Tr. of Oral Arg. 3. The plea colloquy, according to the State, “makes plain that an attorney’s role would be to challenge the charge or senténce,” and therefore adequately conveys to the defendant both the utility of counsel and the dangers of self-representation. Brief for Petitioner 25. Tovar, on the other hand, defends the precise instructions required by the Iowa Supreme Court, see supra, at 86-87, as essential to a knowing, voluntary, and intelligent plea stage waiver of counsel. Brief for Respondent 15.

To resolve this case, we need not endorse the State’s position that nothing more than the plea colloquy was needed to safeguard Tovar’s right to counsel. Preliminarily, we note that there were some things more in this case. Tovar first indicated that he waived counsel at his initial appearance, see supra, at 82, affirmed that he wanted to represent himself at the plea hearing, see supra, at 82, and declined the court’s offer of “time to hire an attorney” at sentencing, when it was still open to him to request withdrawal of his plea, see supra, at 84, and n. 4. Further, the State does not contest that a defendant must be alerted to his right to the assistance of counsel in entering a plea. See Brief for Petitioner 19 (acknowledging defendant’s need to know “retained or appointed counsel can assist” at the plea stage by “work[ingj on the issues of guilt and sentencing”). Indeed, the Iowa Supreme Court appeared to assume that Tovar was informed of his entitlement to counsel’s aid or, at least, to have preter-mitted that issue. See 656 N. W. 2d, at 117. Accordingly, the State presents a narrower question: “Does the Sixth Amendment require a court to give a rigid and detailed admonishment to a pro se defendant pleading guilty of the usefulness of an attorney, that an attorney may provide an independent opinion whether it is wise to plead guilty and that without an attorney the defendant risks overlooking a defense?” Pet. for Cert. i.

Training on that question, we. turn to, and reiterate, the particular language the Iowa Supreme Court employed in announcing the warnings it thought the Sixth Amendment required: “[T]he trial judge [must] advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked,” 656 N. W. 2d, at 121; in addition, “[t]he defendant should be admonished that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty,” ibid. Tovar did not receive such advice, and the sole question before us is whether the Sixth Amendment compels the two admonitions here in controversy. We hold it does not.

This Court recently explained, in reversing a lower court determination that a guilty plea was not voluntary: “[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances — even though the defendant may not know the specific detailed consequences of invoking it.” United States v. Ruiz, 536 U. S. 622, 629 (2002) (emphasis in original). We similarly observed in Patterson: “If [the defendant] .. . lacked a full and complete appreciation of all of the consequences flowing from his waiver, it does not defeat the State’s showing that the information it provided to him satisfied the constitutional minimum.” 487 U. S., at 294 (internal quotation marks omitted). The Iowa Supreme Court gave insufficient consideration to these guiding decisions. In prescribing scripted admonitions and holding them necessary in every guilty plea instance, we further note, the Iowa high court overlooked our observations that the information a defendant must have to waive counsel intelligently will “depend, in each case, upon the particular facts and circumstances surrounding that case,” Johnson, 304 U. S., at 464; supra, at 88.

Moreover, as Tovar acknowledges, in a collateral attack on an uncounseled conviction, it is the defendant’s burden to prove that he did not competently and intelligently waive his right to the assistance of counsel. See Watts v. State, 257 N. W. 2d 70, 71 (Iowa 1977); Brief for Respondent 5, 26-27. In that light, we note that Tovar has never claimed that he did not fully understand the charge or the range of punishment for the crime prior to pleading guilty. Further, he has never “articulate[d] with precision” the additional information counsel could have provided, given the simplicity of the charge. See Patterson, 487 U. S., at 294; supra, at 83. Nor does he assert that he was unaware of his right to be counseled prior to and at his arraignment. Before this Court, he suggests only that he “may have been under the mistaken belief that he had a right to counsel at trial, but not if he was merely going to plead guilty.” Brief for Respondent 16 (emphasis added).

Given “the particular facts and circumstances surrounding [this] case,” see Johnson, 304 U. S., at 464, it is far from clear that warnings of the kind required by the Iowa Supreme Court would have enlightened Tovar’s decision whether to seek counsel or to represent himself. In a case so straightforward, the United States as amicus curiae suggests, the admonitions at issue might confuse or mislead a defendant more than they would inform him: The warnings the Iowa Supreme Court declared mandatory might be misconstrued as a veiled suggestion that a meritorious defense exists or that the defendant could plead to a lesser charge, when neither prospect is a realistic one. If a defendant delays his plea in the vain hope that counsel could uncover a tenable basis for contesting or reducing the criminal charge, the prompt disposition of the case will be impeded, and the resources of either the State (if the defendant is indigent) or the defendant himself (if he is financially ineligible for appointed counsel) will be wasted. Brief for United States as Amicus Curiae 9, 28-29; Tr. of Oral Arg. 20-21.

We note, finally, that States are free to adopt by statute, rule, or decision any guides to the acceptance of an uncoun-seled plea they deem useful. See, e. g., Alaska Rule Crim. Proc. 39(a) (2003); Fla. Rule Crim. Proc. 3.111(d) (2003); Md. Ct. Rule 4-215 (2002); Minn. Rule Crim. Proc. 5.02 (2003); Pa. Rule Crim. Proc. 121, comment (2003). We hold only that the two admonitions the Iowa Supreme Court ordered are not required by the Federal Constitution.

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

It is so ordered.

       “A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in either of the following conditions: a. While under the influence of an alcoholic beverage .... b. While having an alcohol concentration ... of .10 or more.” Iowa Code § 321J.2(1) (1995).

       Tovar appeared in court along with four other individuals charged with misdemeanor offenses. App. 6-10. The presiding judge proposed to conduct the plea proceeding for the five cases jointly, and each of the individuals indicated he did not object to that course of action. Id., at 11.

       The Rule has since been renumbered 2.8.

       At that stage, it was still open to Tovar to request withdrawal of his guilty plea on the OWI charge and to substitute a plea of not guilty. See Iowa Rule Crim. Proc. 8(2)(a) (1992).

       In order to appear at the OWI arraignment, Tovar drove to the courthouse despite the suspension of his license; he was apprehended en route home. App. 50, 53.

       Prior to asking Tovar whether he wished to hire counsel, the court noted that Tovar had applied for a court-appointed attorney but that his application had been denied because he was financially dependent upon his parents. Id., at 46. Tovar does not here challenge the absence of counsel at sentencing.

       See Iowa Rule Crim. Proc. 10(2) (1992) (“Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.”); State v. Wilt, 333 N. W. 2d 457, 460 (Iowa 1983) (approving use of motions for adjudication of law points under Iowa Rule of Criminal Procedure 10(2) where material facts are undisputed).

       Tovar conceded that the 1998 OWI conviction could be used for enhancement purposes. Record 60.

       The dissenting justices criticized the majority’s approach as “rigid” and out of line with the pragmatic approach this Court described in Patterson v. Illinois, 487 U. S. 285, 298 (1988). 656 N. W. 2d, at 122. They noted that, in addition to advice concerning the constitutional rights a guilty plea relinquishes, Tovar was “made fully aware of the penal consequences that might befall him if he went forward without counsel and pleaded guilty.” Ibid.

       The United States as amicus curiae reads our decision in Scott v. Illinois, 440 U. S. 367 (1979), to hold that a constitutionally defective waiver of counsel in a misdemeanor prosecution, although warranting vacation of any term of imprisonment, affords no ground for disturbing the underlying conviction. Amicus accordingly contends that the Constitution should not preclude use of an uncounseled misdemeanor conviction to enhance the penalty for a subsequent offense, regardless of the validity of the prior waiver. See Brief for United States as Amicus Curiae 11, n. 3. The State, however, does not contest the Iowa Supreme Court’s determination that a conviction obtained without an effective waiver of counsel cannot be used to enhance a subsequent charge. See ibid. We therefore do not address arguments amicus advances questioning that premise. See also id., at 29, n. 12.

       The Supreme Court of Iowa also held that “the court must ensure the defendant understands the nature of the charges against him and the range of allowable punishments.” 656 N. W. 2d, at 121. The parties do not dispute that Tovar was so informed.

       The trial court’s comment that Tovar appeared without counsel at the arraignment and the court’s inquiry whether Tovar wanted to represent himself at that hearing, see App. 8-9, hardly lend support to Tovar’s suggestion of what he “may have” believed. See also id., at 46 (court’s inquiry at sentencing whether Tovar “want[ed] to take some time to hire an attorney”); Iowa Eule Crim. Proc. 8(2)(a) (1992) (“[a]t any time before judgment,” defendant may request withdrawal of guilty plea and substitution of not guilty plea).


author: Justice O’Connor Justice Scalia,

text:
    SOUTH FLORIDA WATER MANAGEMENT DISTRICT v. MICCOSUKEE TRIBE OF INDIANS et al.
    No. 02-626.
    Argued January 14, 2004
    Decided March 23, 2004

      Timothy S. Bishop argued the cause for petitioner. With him on the briefs were Sheryl Grimm Wood and James E. Nutt.

      Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Hungar, Deputy Assistant Attorney General Clark, James C. Kilbourne, Ellen Durkee, and Sylvia Quast.

      Dexter W. Lehtinen argued the cause for respondents. With him on the brief for respondent Miccosukee Tribe of Indians were Juan M. Vargas, Claudio Riedi, Sonia, Escobio O’Donnell, Richard J. Ovelmen, and Dione C. Carroll. John E. Childe filed a brief for respondent Friends of the Everglades.

       Briefs of amici curiae urging reversal were filed for the State of Colorado et al. by Ken Salazar, Attorney General of Colorado, Alan J. Gilbert, Solicitor General, Felicity Hannay, Deputy Attorney General, and An

        thony S. Trumbly, Senior Assistant Attorney General, by Patricia A. Madrid, Attorney General of New Mexico, Glenn R. Smith, Deputy Attorney General, and Stephen R. Farris, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mark J. Bennett of Hawaii, Lawrence Wasden of Idaho, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Wayne Stenehjem of North Dakota, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Patrick J. Crank of Wyoming; for Idaho Governor Dirk Kempthorne by L. Michael Bogert; for the City of Weston, Florida, by Susan L. Trevar-then and Nancy E. Stroud; for the City of New York et al. by Michael A. Cardozo, Leonard J. Koerner, Kenneth A. Rubin, and Alexandra Dapolito Dunn; for the Florida Fruit and Vegetable Association et al. by Terry Cole, John J. Rademacher, and John W. Costigan; for the Lake Worth Drainage District et al. by Kenneth G. Spillias and Michelle Diffenderfer; for the National Association of Home Builders by Virginia S. Albrecht, Andrew J. Turner, Duane J Desiderio, and Thomas Jon Ward; for the National Hydropower Association by Sam Kalen and Michael A Swiger; for the National League of Cities et al. by Richard Ruda and James I. Crowley; for the National Water Resources Association et al. by Robert V. Trout, Peggy E. Montarlo, Jeffrey Kightlinger, Gregory K Wilkinson, Guy R. Martin, W. Patrick Schiffer, and Gregg A Houtz; for the Nationwide Public Projects Coalition et al. by Lawrence R. Liebesman; for the Pacific Legal Foundation by Robin L. Rivett and Frank A Shepherd; and for the Utility Water Act Group by Kristy A N. Bulleit.

      Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Robert H. Easton, Assistant Solicitor General, Peter H. Lehner, Chief Assistant Attorney General, and James M. Tierney, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Albert B. Chandler III of Kentucky, G Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Michael A Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Peter C. Harvey of New Jersey, Roy Cooper of North Carolina, W. A Drew Edmondson of Oklahoma, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the Commonwealth of Pennsylvania Department of Environmental Protection by Richard P. Mather, Sr., Leslie Anne Miller, Peter G. Glenn, and K. Scott Roy; for the Association of State Wetland Managers et al. by Patrick A. Parenteau and Julia LeMense Huff; for the Coalition of Greater Minnesota Cities et al. by Douglas L. Skor; for the Florida Wildlife Federation et al. by David G. Guest and Monica K. Reimer; for the National Tribal Environmental Council et al. by Tracy A. Labin, Robert T Anderson, and William H. Rodgers, Jr.; for the National Wildlife Federation et al. by James Mur-r phy and Howard I. Fox; for the Tongue & Yellowstone River Irrigation District et al. by Jack R. Tuholske and Elizabeth A Brennan; for Trout Unlimited, Inc., et al. by Karl S. Coplan; and for Former Administrator of the United States Environmental Protection Agency Carol M. Browner et al. by Richard J. Lazarus.

   Justice O’Connor

delivered the opinion of the Court.

Petitioner South Florida Water Management District operates a pumping facility that transfers water from a canal into a reservoir a short distance away. Respondents Micco-sukee Tribe of Indians and the Friends of the Everglades brought a citizen suit under the Clean Water Act contending that the pumping facility is required to obtain a discharge permit under the National Pollutant Discharge Elimination System. The District Court agreed and granted summary judgment to respondents. A panel of the United States Court of Appeals for the Eleventh Circuit affirmed. Both the District Court and the Eleventh Circuit rested their holdings on the predicate determination that the canal and reservoir are two distinct water bodies. For the reasons explained below, we vacate and remand for further development of the factual record as to the accuracy of that determination.

I

A

The Central and South Florida Flood Control Project (Project) consists of a vast array of levees, canals, pumps, and water impoundment areas in the land between south Florida’s coastal hills and the Everglades. Historically, that land was itself part of the Everglades, and its surface and ground water flowed south in a uniform and unchanneled sheet. Starting in the early 1900’s, however, the State began to build canals to drain the wetlands and make them suitable for cultivation. These canals proved to be a source of trouble; they lowered the water table, allowing saltwater to intrude upon coastal wells, and they proved incapable of controlling flooding. Congress established the Project in 1948 to address these problems. It gave the United States Army Corps of Engineers the task of constructing a comprehensive network of levees, water storage areas, pumps, and canal improvements that would serve several simultaneous purposes, including flood protection, water conservation, and drainage. These improvements fundamentally altered the hydrology of the Everglades, changing the natural sheet flow of ground and surface water. The local sponsor and day-today operator of the Project is the South Florida Water Management District (District).

Five discrete elements of the Project are at issue in this case. One is a canal called “C-ll.” C-ll collects ground water and rainwater from a 104-square-mile area in south central Broward County. App. 110. The area drained by C-ll includes urban, agricultural, and residential development, and is home to 136,000 people. At the western terminus of C-ll is the second Project element at issue here: a large pump station known as “S-9.” When the water level in C-ll rises above a set level, S-9 begins operating and pumps water out of the canal. The water does not travel far. Sixty feet away, the pump station empties the water into a large undeveloped wetland area called “WCA-3,” the third element of the Project we consider here. WCA-3 is the largest of several “water conservation areas” that are remnants of the original South Florida Everglades. The District impounds water in these areas to conserve freshwater that might otherwise flow directly to the ocean, and to preserve wetlands habitat. Id., at 112.

Using pump stations like S-9, the District maintains the water table in WCA-3 at a level significantly higher than that in the developed lands drained by the C-ll canal to the east. Absent human intervention, that water would simply flow back east, where it would rejoin the waters of the canal and flood the populated areas of the C-ll basin. That return flow is prevented, or, more accurately, slowed, by levees that hold back the surface waters of WCA-3. Two of those levees, L-33 and L-37, are the final two elements of the Project at issue here. The combined effect of L-33 and L-37, C-ll, and S-9 is artificially to separate the C-ll basin from WCA-3; left to nature, the two areas would be a single wetland covered in an undifferentiated body of surface and ground water flowing slowly southward.

B

As the above description illustrates, the Project has wrought large-scale hydrologic and environmental change in South Florida, some deliberate and some accidental. Its most obvious environmental impact has been the conversion of what were once wetlands into areas suitable for human use. But the Project also has affected those areas that remain wetland ecosystems.

Rain on the western side of the L-33 and L-37 levees falls into the wetland ecosystem of WCA-3. Rain on the eastern side of the levees, on the other hand, falls on agricultural, urban, and residential land. Before it enters the C-ll canal, whether directly as surface runoff or indirectly as ground water, that rainwater absorbs contaminants produced by human activities. The water in C-ll therefore differs chemically from that in WCA-3. Of particular interest here, C-ll water contains elevated levels of phosphorous, which is found in fertilizers used by farmers in the C-ll basin. When water from C-ll is pumped across the levees, the phosphorous it contains alters the balance of WCA-3’s ecosystem (which is naturally low in phosphorous) and stimulates the growth of algae and plants foreign to the Everglades ecosystem.

The phosphorous-related impacts of the Project are well known and have received a great deal of attention from state and federal authorities for more than 20 years. A number of initiatives are currently under way to reduce these impacts and thereby restore the ecological integrity of the Everglades. Respondents Miecosukee Tribe of Indians and the Friends of the Everglades (hereinafter simply Tribe), impatient with the pace of this progress, brought this Clean Water Act suit in the United States District Court for the Southern District of Florida. They sought, among other things, to enjoin the operation of S-9 and, in turn, the conveyance of water from C-ll into WCA-3.

C

Congress enacted the Clean Water Act (Act) in 1972. Its stated objective was “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816,33 U. S. C. § 1251. To serve those ends, the Act prohibits “the discharge of any pollutant by any person” unless done in compliance with some provision of the Act. § 1311(a). The provision relevant to this case, § 1342, establishes the National Pollutant Discharge Elimination System, or NPDES. Generally speaking, the NPDES requires dis-chargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters. The Act defines the phrase “‘discharge of a pollutant’” to mean “any addition of any pollutant to navigable waters from any point source.” §1362(12). A “‘point source,’ ” in turn, is defined as “any discernible, confined and discrete conveyance,” such as a pipe, ditch, channel, or tunnel, “from which pollutants are or may be discharged.” § 1362(14).

According to the Tribe, the District cannot operate S-9 without an NPDES permit because the pump station moves phosphorous-laden water from C-ll into WCA-3. The District does not dispute that phosphorous is a pollutant, or that C-ll and WCA-3 are “navigable waters” within the meaning of the Act. The question, it contends, is whether the operation of the S-9 pump constitutes the “discharge of [a] pollutant” within the meaning of the Act.

The parties filed cross-motions for summary judgment on the issue of whether S-9 requires an NPDES permit. The District Court granted the Tribe’s motion, reasoning as follows:

“In this case an addition of pollutants exists because undisputedly water containing pollutants is being discharged through S-9 from C-ll waters into the Everglades, both of which are separate bodies of United States water with ... different quality levels. They are two separate bodies of water because the transfer of water or its contents from C-ll into the Everglades would not occur naturally.” App. to Pet. for Cert. 28a-29a.

The Court of Appeals affirmed. It reasoned first that “in determining whether pollutants are added to navigable waters for purposes of the [Act], the receiving body of water is the relevant body of navigable water.” 280 F. 3d 1364, 1368 (CA11 2002). After concluding that pollutants were indeed being added to WCA-3, the court then asked whether that addition of pollutants was from a “point source,” so as to trigger the NPDES permitting requirement. To answer that question, it explained:

“[F]or an addition of pollutants to be from a point source, the relevant inquiry is whether — but for the point source — the pollutants would have been added to the receiving body of water. We, therefore, conclude that an addition from a point source occurs if a point source is the cause-in-fact of the release of pollutants into navigable waters.
“When a point source changes the natural flow of a body of water which contains pollutants and causes that water to flow into another distinct body of navigable water into which it would not have otherwise flowed, that point source is the cause-in-fact of the discharge of pollutants.” Ibid, (footnote omitted).

Because it believed that the water in the C-ll canal would not flow into WCA-3 without the operation of the S-9 pump station, the Court of Appeals concluded that S-9 was the cause-in-fact of the addition of pollutants to WCA-3. It accordingly affirmed the District Court’s grant of summary judgment, and held that the S-9 pump station requires an NPDES permit. We granted certiorari. 539 U. S. 957 (2003).

II

The District and the Federal Government, as amicus, advance three separate arguments, any of which would, if accepted, lead to the conclusion that the S-9 pump station does not require a point source discharge permit under the NPDES program. Two of these arguments involve the application of disputed contentions of law to agreed-upon facts, while the third involves the application of agreed-upon law to disputed facts. For reasons explained below, we decline at this time to resolve all of the parties’ legal disagreements, and instead remand for further proceedings regarding their factual dispute.

A

In its opening brief on the merits, the District argued that the NPDES program applies to a point source “only when a pollutant originates from the point source,” and not when pollutants originating elsewhere merely pass through the point source. Brief for Petitioner 20. This argument mirrors the question presented in the District’s petition for cer-tiorari: “Whether the pumping of water by a state water management agency that adds nothing to the water being pumped constitutes an ‘addition’ of a pollutant ‘from’ a point source triggering the need for a National Pollutant Discharge Elimination System permit under the Clean Water Act.” Pet. for Cert. i. Although the Government rejects the District’s legal position, Brief for United States as Ami-cus Curiae 21, it and the Tribe agree with the factual proposition that S-9 does not itself add any pollutants to the water it conveys into WCA-3.

This initial argument is untenable, and even the District appears to have abandoned it in its reply brief. Reply Brief for Petitioner 2. A point source is, by definition, a “discernible, confined, and discrete conveyance.” §1362(14) (emphasis added). That definition makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to “navigable waters,” which are, in turn, defined as “the waters of the United States.” § 1362(7). Tellingly, the examples of “point sources” listed by the Act include pipes, ditches, tunnels, and conduits, objects that do not themselves generate pollutants but merely transport them. §1362(14). In addition, one of the Act’s primary goals was to impose NPDES permitting requirements on municipal wastewater treatment plants. See, e. g., § 1311(b)(1)(B) (establishing a compliance schedule for publicly owned treatment works). But under the District’s interpretation of the Act, the NPDES program would not cover such plants, because they treat and discharge pollutants added to water by others. We therefore reject the District’s proposed reading of the definition of “ ‘discharge of a pollutant’ ” contained in § 1362(12). That definition includes within its reach point sources that do not themselves generate pollutants.

B

Having answered the precise question on which we granted certiorari, we turn to a second argument, advanced primarily by the Government as amicus curiae in merits briefing and at oral argument. For purposes of determining whether there has been “any addition of any pollutant to navigable waters from any point source,” ibid., the Government contends that all the water bodies that fall within the Act’s definition of “‘navigable waters’” (that is, all “the waters of the United States, including the territorial seas,” § 1362(7)) should be viewed unitarily for purposes of NPDES permitting requirements. Because the Act requires NPDES permits only when there is an addition of a pollutant “to navigable waters,” the Government’s approach would lead to the conclusion that such permits are not required when water from one navigable water body is discharged, unaltered, into another navigable water body. That would be true even if one water body were polluted and the other pristine, and the two would not otherwise mix. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F. 3d 481, 492 (CA2 2001); Dubois v. United States Dept. of Agriculture, 102 F. 3d 1273 (CA1 1996). Under this “unitary waters” approach, the S-9 pump station would not need an NPDES permit.

1

The “unitary waters” argument focuses on the Act’s definition of a pollutant discharge as “any addition of any pollutant to navigable waters from any point source.” § 1362(12). The Government contends that the absence of the word “any” prior to the phrase “navigable waters” in §1362(12) signals Congress’ understanding that NPDES permits would not be required for pollution caused by the engineered transfer of one “navigable water” into another. It argues that Congress intended that such pollution instead would be addressed through local nonpoint source pollution programs. Section 1314(f)(2)(F), which concerns nonpoint sources, directs the Environmental Protection Agency (EPA) to give States information on the evaluation and control of “pollution resulting from ... changes in the movement, flow, or circulation of any navigable waters or ground waters, including changes caused by the construction of dams, levees, channels, causeways, or flow diversion facilities.”

We note, however, that § 1314(f)(2)(F) does not explicitly exempt nonpoint pollution sources from the NPDES program if they also fall within the “point source” definition. And several NPDES provisions might be read to suggest a view contrary to the unitary waters approach. For example, under the Act, a State may set individualized ambient water quality standards by taking into consideration “the designated uses of the navigable waters involved.” 33 U. S. C. § 1313(c)(2)(A). Those water quality standards, in turn, directly affect local NPDES permits; if standard permit conditions fail to achieve the water quality goals for a given water body, the State must determine the total pollutant load that the water body can sustain and then allocate that load among the permit holders who discharge to the water body. § 1313(d). This approach suggests that the Act protects individual water bodies as well as the “waters of the United States” as a whole.

The Government also suggests that we adopt the “unitary waters” approach out of deference to a longstanding EPA view that the process of “transporting, impounding, and releasing navigable waters” cannot constitute an “ ‘addition’ ” of pollutants to “ ‘the watérs of the United States.’ ” Brief for United States as Amicus Curiae 16. But the Government does not identify any administrative documents in which EPA has espoused that position. Indeed, an amicus brief filed by several former EPA officials argues that the agency once reached the opposite conclusion. See Brief for Former Administrator Carol M. Browner et al. as Amici Curiae 17 (citing In re Riverside Irrigation Dist., 1975 WL 23864 (Ofc. Gen. Coun., June 27, 1975) (irrigation ditches that discharge to navigable waters require NPDES permits even if they themselves qualify as navigable waters)). The “unitary waters” approach could also conflict with current NPDES regulations. For example, 40 CFR § 122.45(g)(4) (2003) allows an industrial water user to obtain “intake credit” for pollutants present in water that it withdraws from navigable waters. When the permit holder discharges the water after use, it does not have to remove pollutants that were in the water before it was withdrawn. There is a caveat, however: EPA extends such credit “only if the dis-charger demonstrates that the intake water is drawn from the same body of water into which the discharge is made.” The NPDES program thus appears to address the movement of pollutants among water bodies, at least at times.

Finally, the Government and numerous amici warn that affirming the Court of Appeals in this case would have significant practical consequences. If we read the Act to require an NPDES permit for every engineered diversion of one navigable water into another, thousands of new permits might have to be issued, particularly by western States, whose water supply networks often rely on engineered transfers among various natural water bodies. See Brief for Colorado et al. as Amici Curiae 2-4. Many of those diversions might also require expensive treatment to meet water quality criteria. It may be that construing the NPDES program to cover such transfers would therefore raise the costs of water distribution prohibitively, and violate Congress’ specific instruction that “the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired” by the Act. § 1251(g). On the other hand, it may be that such permitting authority is necessary to protect water quality, and that the States or EPA could control regulatory costs by issuing general permits to point sources associated with water distribution programs. See 40 CFR §§ 122.28, 123.25 (2003). Indeed, that is the position of the one State that has interpreted the Act to cover interbasin water transfers. See Brief for Pennsylvania Department of Environmental Protection as Amicus Curiae 11-18.

2

Because WCA-3 and C-ll are both “navigable waters,” adopting the “unitary waters” approach would lead to the conclusion that the District may operate S-9 without an NPDES permit. But despite its relevance here, neither the District nor the Government raised the unitary waters approach before the Court of Appeals or in their briefs respecting the petition for certiorari. (The District adopted the position as its own in its reply brief on the merits.) Indeed, we are not aware of any reported case that examines the unitary waters argument in precisely the form that the Government now presents it. As a result, we decline to resolve it here. Because we find it necessary to vacate the judgment of the Court of Appeals with respect to a third argument presented by the District, the unitary waters argument will be open to the parties on remand.

C

In' the courts below, as here, the District contended that the C-ll canal and WCA-3 impoundment area are not distinct water bodies at all, but instead are two hydrologically indistinguishable parts of a single water body. The Government agrees with the District on this point, claiming that because the C-ll canal and WCA-3 “share a unique, intimately related, hydrological association,” they “can appropriately be viewed, for purposes of Section 402 of the Clean Water Act, as parts of a single body of water.” Brief for United States in Opposition 13. The Tribe does not dispute that if C-ll and WCA-3 are simply two parts of the same water body, pumping water from one into the other cannot constitute an “addition” of pollutants. As the Second Circuit put it in Trout Unlimited, “[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘added’ soup or anything else to the pot.” 273 F. 3d, at 492. What the Tribe disputes is the accuracy of the District’s factual premise; according to the Tribe, C-ll and WCA-3 are two pots of soup, not one.

The record does contain information supporting the District’s view of the facts. Although C-ll and WCA-3 are divided from one another by the L-33 and L-37 levees, that line appears to be an uncertain one. Because Everglades soil is extremely porous, water flows easily between ground and surface waters, so much so that “[g]round and surface waters are essentially the same thing.” App. Ill, 117. C-ll and WCA-3, of course, share a common underlying aquifer. Tr. of Oral Arg. 42. Moreover, the L-33 and L-37 levees continually leak, allowing water to escape from WCA-3. This means not only that any boundary between C-ll and WCA-3 is indistinct, but also that there is some significant mingling of the two waters; the record reveals that even without use of the S-9 pump station, water travels as both seepage and ground water flow between the water conservation area and the C-ll basin. App. 172; see also id., at 37 (describing flow between C-ll and WCA-3 as “cyclical”).

The parties also disagree about how the relationship between S-9 and WCA-3 should be assessed. At oral argument, counsel for the Tribe focused on the differing “biological or ecosystem characteristics” of the respective waters, Tr. of Oral Arg. 43; see also Brief for Respondent Miccosukee Tribe of Indians 6-7; Brief for Respondent Friends of the Everglades 18-22, while counsel for the District emphasizes the close hydrological connections between the two. See, e. g., Brief for Petitioner 47. Despite these disputes, the District Court granted summary judgment to the Tribe. It applied a test that neither party defends; it determined that C-ll and WCA-3 are distinct “because the transfer of water or its contents from C-ll into the Everglades would not occur naturally.” App. to Pet. for Cert. 28a. The Court of Appeals for the Eleventh Circuit endorsed this test. 280 F. 3d, at 1368.

We do not decide here whether the District Court’s test is adequate for determining whether C-ll and WCA-3 are distinct. Instead, we hold only that the District Court applied its test prematurely. Summary judgment is appropriate only where there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U. S. 317 (1986). The record before us leads us to believe that some factual issues remain unresolved. The District Court certainly was correct to characterize the flow through the S-9 pump station as a nonnatural one, propelled as it is by diesel-fired motors against the pull of gravity. And it also appears true that if S-9 were shut down, the water in the C-ll canal might for a brief time flow east, rather than west, as it now does. But the effects of shutting down the pump might extend beyond that. The limited record before us suggests that if S-9 were shut down, the area drained by C-ll would flood quite quickly. See 280 F. 3d, at 1366 (“Without the operation of the S-9 pump station, the populated western portion of Broward County would flood within days”). That flooding might mean that C-ll would no longer be a “distinct body of navigable water,” id., at 1368, but part of a larger water body extending over WCA-3 and the C-ll basin. It also might call into question the Eleventh Circuit’s conclusion that S-9 is the cause in fact of phosphorous addition to WCA-3. Nothing in the record suggests that the District Court considered these issues when it granted summary judgment. Indeed, in ordering later emergency relief from its own injunction against the operation of the S-9 pump station, the court admitted that it had not previously understood that shutting down S-9 would “‘literally ope[n] the flood gates.’” Id., at 1371.

We find that further development of the record is necessary to resolve the dispute over the validity of the distinction between C-ll and WCA-3. After reviewing the full record, it is possible that, the District Court will conclude that C-ll and WCA-3 are not meaningfully distinct water bodies. If it does so, then the S-9 pump station will not need an NPDES permit. In addition, the Government’s broader “unitary waters” argument is open to the District on remand. Accordingly, the judgment of the United States Court of Appeals for the Eleventh Circuit is vacated, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in part and dissenting in part.

I join Parts I and II-A of the Court’s opinion, which hold that a point source is not exempt from the National Pollutant Discharge Elimination System permit requirement merely because it does not itself add pollutants to the water it pumps. I dissent, however, from its decision to vacate the judgment below on another ground, Part II-C, ante, and to invite consideration of yet another legal theory, Part II-B, ante. Neither of those actions is taken in response to the question presented. I would affirm the Court of Appeals’ disposition of the question presented without reaching other issues.

Parts II-B and II-C are problematic for other reasons as well. In Part II-B, the Court declines to resolve the Government’s unitary-waters argument on the ground that it was not raised or decided below. See ante, at 109. In my judgment, a fair reading of the opinion and briefs does not support that contention. See, e. g., 280 F. 3d 1364, 1368, n. 5 (CA11 2002) (“We reject the Water District’s argument that no addition of pollutants can occur unless pollutants are added from the outside world insofar as the Water District contends the outside world cannot include another body of navigable waters” (emphasis added)); Brief for Appellant in No. 00-15703-CC (CA11), p. 10 (“The S-9 pump station merely moves navigable waters from one side of the Levee to another”). That the argument was not phrased in the same terms or argued with the same clarity does not mean it was not made. I see no point in directing the Court of Appeals to consider an argument it has already rejected.

I also question the Court’s holding in Part II-C that summary judgment was precluded by the possibility that, if the pumping station were shut down, flooding in the C-ll basin might ultimately cause pollutants to flow from C-ll to WCA-3. Ante, at 111. To my knowledge, that argument has not previously been made. Petitioner argued that WCA-3 and C-ll were historically part of the same ecosystem and that they remain hydrologically related, see Brief for Petitioner 46-49, but that is quite different from arguing that, absent S-9, pollutants would flow from C-11 to WCA-3 (a journey that, at the moment, is uphill). Nothing in Celotex Corp. v. Catrett, 477 U. S. 317 (1986), requires a district court to speculate sua sponte about possibilities even the parties have not contemplated. Cf. Fed. Rule Civ. Proc. 56(e) (opponent of summary judgment must “set forth specific facts showing that there is a genuine issue for trial”).

I would affirm the judgment below as to the question presented, leaving the Government’s unitary-waters theory to be considered in another case.

       An applicant for an individual NPDES permit must provide information about, among other things, the point source itself, the nature of the pollutants to be discharged, and any water treatment system that will be used. General permits greatly reduce that administrative burden by authorizing discharges from a category of point sources within a specified geographic area. Once EPA or a state agency issues such a permit, covered entities, in some cases, need take no further action to achieve compliance with the NPDES besides adhering to the permit conditions. See 40 CFR § 122.28(b)(2)(v) (2003).


author: Justice Thomas

text:
    UNITED STATES v. GALLETTI et al.
    No. 02-1389.
    Argued January 12, 2004
    Decided March 23, 2004

      Kent L. Jones argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General O’Connor, Deputy Solicitor General Hungar, Thomas J. Clark, and Andrea R. Tebbets.

      David R. Haberbush argued the cause for respondents. With him on the brief were Joel Barry Feinberg, A. Lavar Taylor, and Charles F. Rosen.

   Justice Thomas

delivered the opinion of the Court.

Section 6501(a) of the Internal Revenue Code states that, except as otherwise provided, “the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed . . . and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.” 26 U. S. C. § 6501(a). If a tax is properly assessed within three years, however, the statute of limitations for the collection of the tax is extended by 10 years from the date of assessment. § 6502(a). We must decide in this case whether, in order for the United States to avail itself of the 10-year increase in the statute of limitations for collection of a tax debt, it must assess the taxes not only against a partnership that is directly liable for the debt, but also against each individual partner who might be jointly and severally liable for the debts of the partnership. Under California law a partnership maintains a separate identity from its general partners, and the partners are only secondarily liable for the tax debts of the partnership, as they are for any debt of the partnership. Because, in this case, the only relevant “taxpayer” for purposes of §§6501-6502 is the partnership, we hold that the proper assessment of the tax against the partnership suffices to extend the statute of limitations for collection of the tax from the general partners who are liable for the payment of the partnership’s debts. The Government’s timely assessment of the tax against the partnership was sufficient to extend the statute of limitations to collect the tax in a judicial proceeding, whether from the partnership itself or from those liable for its debts.

I

Respondents, Abel Cosmo Galletti, Sarah Galletti, Fran-cesco Briguglio, and Angela Briguglio, were general partners of Marina Cabrillo Company (Partnership). From 1992 to 1995, the Partnership failed to pay significant federal employment tax liabilities that it had incurred. Although the Internal Revenue Service (IRS) timely assessed those taxes against the Partnership in 1994,1995, and 1996, the Partnership never satisfied the debt.

Respondents Abel and Sarah Galletti and respondents Francesco and Angela Briguglio filed joint petitions for relief under Chapter 13 of the Bankruptcy Code on October 20, 1999, and February 4, 2000, respectively. In the Gallettis’ proceedings, the IRS filed a proof of claim in the amount of $395,179.89 for unpaid employment taxes assessed between January 1994 and July 1995 against the Partnership. In the Briguglios’ proceedings, the IRS filed a proof of claim in the amount of $427,402.74. The proof of claim included secured claims totaling $403,264.06 for unpaid employment taxes assessed between January 1994 and November 1996 against the Partnership.

Respondents objected to the claims on the ground that they were not proven against the estates. Respondents did not dispute that under California law they are jointly and severally liable for the debts of the Partnership. Nor did they dispute that the IRS had properly assessed the taxes against the Partnership within the 3-year statute of limitations, thereby extending the limitations period for collection of the taxes by 10 years. Rather, respondents argued that the timely assessment of the Partnership extended the statute of limitations only against the Partnership. To extend the 3-year statute of limitations against the general partners, respondents argued, the IRS had to separately assess the general partners within the 3-year limitations period. Because it did not, and because the 3-year limitations period had expired, respondents argued that the IRS could no longer collect the debt from them. The Bankruptcy Court and the District Court agreed and sustained respondents’ objections to the claims.

The Court of Appeals for the Ninth Circuit affirmed. The Government argued that the Code does not require that the individual partners be assessed within the 3-year period prescribed by § 6501 and that the IRS made a valid assessment of the taxpayer here because the Partnership is the only relevant “taxpayer.” The Court of Appeals held that since respondents are “taxpayers” under § 7701(a)(14), which defines “taxpayer” to mean “any person subject to any internal revenue tax,” they are also “taxpayers” under §§6203 and 6501. As such, the Court of Appeals held that “[t]he assessment against the Partnership extended the statute of limitations only with respect to the Partnership.” 314 F. 3d 336, 340 (2002).

The Government argued in the alternative that because respondents conceded that they were liable for the Partnership’s employment tax debts as a matter of California law, the Government had a right to payment, which suffices to prove a valid claim in bankruptcy. See 11 U. S. C. § 101(5)(A) (defining “claim” as including a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured”). The Court of Appeals rejected this argument because, under California law, a creditor must obtain a judgment against a partner before holding that partner liable for the partnership’s debt. Cal. Corp. Code Ann. § 16307(c) (West Supp. 2004). At the time the United States filed its proof of claim, it had not obtained a separate judgment against respondents, and the time for obtaining a judgment under the Internal Revenue Code against respondents had expired.

We granted certiorari, 539 U. S. 940 (2003), and now reverse.

II

Section 6501(a) of the Internal Revenue Code provides that “the amount of any tax imposed [by the Code] shall be assessed within 3 years after the return was filed.” 26 U. S. C. § 6501(a). “The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary [of the Treasury] in accordance with rules or regulations prescribed by the Secretary.” §6203. Within 60 days of the assessment, the Secretary is required to “give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof.” § 6303(a). If the tax is properly assessed within 3 years, the limitations period for collection of the tax is extended by 10 years from the date of the assessment. § 6502.

The dispute in this case centers on whether the United States can collect the Partnership’s unpaid employment taxes from respondents in a judicial proceeding occurring more than three years after the tax return was filed but within the 10-year extension to the 3-year limitations period that attached when the tax was timely assessed against the Partnership. Respondents insist that a valid assessment (that is, one that would trigger the 10-year increase in the statute of limitations) must name them individually. This is so, according to respondents, because they are primarily liable for the tax debt, both because they are “the [relevant] taxpayer^]” under §6203 and because they are jointly and severally liable for the tax debts of the Partnership. We reject both arguments in turn.

A

Respondents argue, and the Court of Appeals agreed, that each partner is primarily liable for the debt and must be individually assessed because each partner is a separate “taxpayer” under 26 U. S. C. §6203. The statutory definition of “taxpayer” includes “any person subject to any internal revenue tax,” and “person” includes both “an individual” and a “partnership,” §§ 7701(a)(14), (a)(1). The Court of Appeals observed that although the Partnership is a “taxpayer,” each individual partner is also a separate “taxpayer.” As such, the Court of Appeals interpreted § 6203’s requirement that the Secretary of the Treasury record “the liability of the taxpayer” to require a separate assessment against each of the general partners.

Although the Court of Appeals correctly concluded that an individual partner can be a “taxpayer,” the inquiry does not end there. Section 6203 speaks of “the liability of the taxpayer” (emphasis added), which indicates that the relevant taxpayer must be determined. The liability in this case arose from the Partnership’s failure to comply with § 3402(a)(1) of the Code, which requires “every employer making payment of wages” to deduct and withhold employment taxes. Moreover, “[t]he employer shall be liable for the payment of the tax required to be deducted and withheld.” §3403. When an employer fails to withhold and submit the requisite amount of employment taxes, §3403 makes clear that the liable taxpayer is the employer. In this case, the “employer” was the Partnership.

B

Respondents also argue that they are primarily liable for the Partnership’s tax debt because, under California law, general partners are jointly and severally liable for the debts of their partnership, Cal. Corp. Code Ann. §16306 (West Supp. 2004). Brief for Respondents 8-16. As our prior discussion demonstrates, however, respondents cannot show that they are primarily liable for the payment of the Partnership’s employment taxes unless they can show that they are the “employer.” However, under California’s partnership principles, a partnership and its general partners are separate entities. See § 16201. Thus respondents cannot argue that, for all intents and purposes, imposing a tax directly on the Partnership is equivalent to imposing a tax directly on the general partners. Respondents must instead prove that the tax liability was imposed both on the Partnership and respondents as separate “employers.” The fact that respondents are jointly and severally liable for the debts of the Partnership is irrelevant to this determination.

Ill

We now turn to the question whether the Government must make separate assessments of a single tax debt against persons or entities secondarily liable for that debt in order for § 6502’s extended statute of limitations to apply to those persons or entities. We hold that the Code contains no such requirement. Respondents’ argument that they must be separately assessed turns on a mistaken understanding of the function and nature of an assessment as identical to the initiation of a formal collection action against any person or entity who might be liable for payment of a debt. In its numerous uses throughout the Code, it is clear that the term “assessment” refers to little more than the calculation or recording of a tax liability. See, e. g., 26 U. S. C. § 6201 (assessment authority); § 6203 (method of assessment); § 6204 (supplemental assessments); 26 CFR § 601.103 (2003). See also Black’s Law Dictionary 111 (7th ed. 1999) (defining “assessment” as the “[d]etermination of the [tax] rate or amount of something, such as a tax or damages”). “The Federal tax system is basically one of self-assessment,” whereby each taxpayer computes the tax due and then files the appropriate form of return along with the requisite payment. 26 CFR § 601.103(a) (2003). In most cases, the Secretary accepts the self-assessment and simply records the liability of the taxpayer. Where the taxpayer fails to file the form of return or miscalculates the tax due, as in this ease, the Secretary can assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties),” 26 U. S. C. § 6201(a), by “recording the liability of the taxpayer in the office of the Secretary,” §6203. In other words, where the Secretary rejects the self-assessment of the taxpayer or discovers that the taxpayer has failed to file a return, the Secretary calculates the proper amount of liability and records it in the Government’s books.

To be sure, the assessment of a tax triggers certain consequences. After the amount of liability has been established and recorded, the IRS can employ administrative enforcement methods to collect the tax. §§6321-6327, 6331-6334. The assessment of a tax liability also extends the period during which the Government can collect the tax. But the fact that the act of assessment has consequences does not change the function of the assessment: to calculate and record a tax liability.

Under a proper understanding of the function and nature of an assessment, it is clear that it is the tax that is assessed, not the taxpayer. See § 6501(a) (“the amount of any tax ... shall be assessed”); § 6502(a) (“[wjhere the assessment of any tax”). And in United States v. Updike, 281 U. S. 489 (1930), the Court, interpreting a predecessor to § 6502, held that the limitations period resulting from a proper assessment governs “the extent of time for the enforcement of the tax liability,” id., at 495. In other words, the Court held that the statute of limitations attached to the debt as a whole. The basis of the liability in Updike was a tax imposed on the corporation, and the Court held that the same limitations period applied in a suit to collect the tax from the corporation as in a suit to collect the tax from the derivatively liable transferee. Id., at 494-496. See also United States v. Wright, 57 P. 3d 561, 563 (CA7 1995) (holding that, based on Updike’s principle of “all-for-one, one-for-all,” the statute of limitations governs the debt as a whole).

Once a tax has been properly assessed, nothing in the Code requires the IRS to duplicate its efforts by separately assessing the same tax against individuals or entities who are not the actual taxpayers but are, by reason of state law, liable for payment of the taxpayer’s debt. The consequences of the assessment — in this case the extension of the statute of limitations for collection of the debt — attach to the tax debt without reference to the special circumstances of the secondarily liable parties.

In this case, the tax was properly assessed against the Partnership, thereby extending the statute of limitations for collection of the debt. The United States now timely seeks to collect that debt in judicial proceedings against respondents. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

       Because the Government is attempting to enforce the Partnership’s tax liabilities against respondents in a judicial proceeding, we do not address whether an assessment only against the Partnership is sufficient for the IRS to commence administrative collection of the Partnership’s tax debts by lien or levy against respondents’ property.
      We also decline to address whether an assessment against the partnership suffices to trigger liability against the partners for interest and penalties without separate notice and demand to them.

       Respondents argue that even if we were to hold that the partners are secondarily liable, the IRS would still be barred from collecting the taxes. Respondents contend that if partners are not “taxpayers” under § 6203, then their liability arises only under state law, and the state 3-year statute of limitations therefore applies. Brief for Respondents 30-34. Respondents have forfeited this argument, by failing to raise it in the courts below. Indeed, the closest respondents have come to arguing that the state limitations period applies was in the Court of Appeals, when respondents argued that “under California law, any collections suit filed against a partner to collect a partnership debt is subject to the statute limitation provision which applies to the underlying debt of the partnership.” Appellee’s Opening Brief in Nos. 01-55953, 01-55954 (CA9), p. 14. This argument, of course, is contrary to respondents’ position in this Court.

       Our decision is consistent with this Court’s holding in United States v. Williams, 514 U. S. 527, 532-536 (1995), where we interpreted “taxpayer” under 26 U. S. C. § 6511 more broadly. Here, it is clear that we must interpret “the taxpayer” under § 6203 with reference to the underlying liability.

       We use the term “secondary liability” to mean liability that is derived from the original or primary liability.

       The Court of Appeals also held that the claims were barred by California partnership law, which requires a creditor first to obtain a judgment against a partnership before holding the partners liable for the partnership’s debt. 314 F. 3d 336, 344 (CA9 2002). When respondents filed for bankruptcy, an automatic stay barred the Government from bringing suit outside the Bankruptcy Court to enforce respondents’ secondary liability. 11 U. S. C. § 362(a)(1). Respondents do not dispute, however, that the adjudication of a disputed claim satisfies California's requirement that there be a “judgment against a partner.” Cal. Corp. Code Ann. § 16307(c) (West Supp. 2004). Moreover, a claim is allowable in bankruptcy “whether or not such right is reduced to judgment.” 11 U. S. C. § 101(5)(A).