author: Justice Kennedy Justice Stevens, Justice Scalia,

text:
    SLACK v. McDANIEL, WARDEN, et al.
    No. 98-6322.
    Argued October 4, 1999
    Reargued March 29, 2000
    Decided April 26, 2000

      Kennedy, J., delivered the opinion of the Court, Part I of which was unanimous, Part II of which was joined by Rehnquist, C. J., and O’Con-nor, Scaua, Thomas, and Ginsburg, JJ., and Parts III and IV of which were joined by Rehnquist, C. J., and Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter and Breyer, JJ., joined, post, p. 490. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined, post, p. 490.

      Michael Pescetta, by appointment of the Court, 526 U. S. 1049, argued and reargued the cause for petitioner. With him on the briefs was Timothy P. O’Toole.

      Matthew D. Roberts argued the cause for the United States as amicus curias. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Vicki S. Marani.

      David F. Sarnowski, Chief Deputy Attorney General of Nevada, argued and reargued the cause for .respondents. With him on the briefs were Frankie Sue Del Papa, Attorney General, and Julie A. Slabaugh, Deputy Attorney General. With him on the brief on the original argument was Ms. Del Papa.

      Briefs of amici curias urging reversal were filed for the National Association of Criminal Defense Lawyers et al. by Edward M. Chikofsky, Barbara E. Bergman, and David M. Porter; and for the Rutherford Institute by John W. Whitehead.

      Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, and Donald E. De Nicola and A. Scott Hayward, Deputy Attorneys General, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Bo-telho of Alaska, Janet Napolitano of Arizona, Mark Pryor oí Arkansas, M. Jane Brady of Delaware, Robert A Butterworth of Florida, Thomas J. Miller of Iowa, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Patricia A. Madrid of New Mexico, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Mark L. Earley of Virginia, and Christine 0. Gregoire of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

   Justice Kennedy

delivered the opinion of the Court."

We are called upon to resolve a series of issues regarding the law of habeas corpus, including questions of the proper application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We hold as follows:

First, when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U. S. C. § 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA’s effective date.

Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the,prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Third, a habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a “second or successive” petition as that term is understood in the habeas corpus context. Federal courts do, however, retain broad powers to prevent duplicative or unnecessary litigation.

I

Petitioner Antonio Slack was convicted of second-degree murder in Nevada state court in 1990. His direct appeal was unsuccessful. On November 27,1991, Slack filed a petition for writ of habeas corpus in federal court under 28 U. S. C. § 2254. Early in the federal proceeding, Slack decided to litigate claims he had not yet presented to the Nevada courts. He could not raise the claims in federal court because, under the exhaustion of remedies rule explained in Rose v. Lundy, 455 U. S. 509 (1982), a federal court was required to dismiss a petition presenting claims not yet litigated in state court. Accordingly, Slack filed a motion seeking to hold his federal petition in abeyance while he returned to state court to exhaust the new claims. Without objection by the State, the District Court ordered the habeas petition dismissed “without prejudice.” The order, dated February 19,1992, further stated, “Petitioner is granted leave to file an application to renew upon exhaustion of all State remedies.” Slack v. Director, Nev. Dept. of Prisons, No. CV-N-91-561 (D. Nev.), App. 22.

After an unsuccessful round of state postconvietion proceedings, Slack filed a new federal habeas petition on May 30,1995. The District Court later appointed counsel, directing him to file an amended petition or a notice of intention to proceed with the current petition. On December 24,1997, counsel filed an amended petition presenting 14 claims for relief. The State moved to dismiss the petition. As its first ground, the State argued that Slack’s petition must be dismissed because it was a mixed petition, that is to say a petition raising some claims which had been presented to the state courts and some which had not. As its second ground, the State cited Farmer v. McDaniel, 98 F. 3d 1548 (CA9 1996), and contended that, under the established rule in the Ninth Circuit, claims Slack had not raised in his 1991 federal habeas petition must be dismissed as an abuse of the writ.

The District Court granted the State’s motion. First, the court relied on Farmer to hold that Slack’s 1995 petition was “[a] second or successive petition,” even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. The court then invoked the abuse of the writ doctrine to dismiss with prejudice the claims Slack had not raised in the 1991 petition. This left Slack with four claims, each having been raised in the 1991 petition; but one of these, the court concluded, had not yet been presented to the state courts. The court therefore dismissed Slack’s remaining claims because they were in a mixed petition. Here, Slack seeks to challenge the dismissal of claims as abusive; he does not contend that all claims presented in the amended petition were exhausted.

The District Court’s dismissal order was filed March 30, 1998. On April 29, 1998, Slack filed in the District Court a pleading captioned “Notice of Appeal.” Consistent with Circuit practice, the court treated the notice as an application for a certificate of probable cause (CPC) under the pre-AEDPA version of 28 U. S. C. §2253; and it denied a CPC, concluding the appeal would raise no substantial issue. The Court of Appeals likewise denied a CPC. No. CV-95-194 (CA9, July 7, 1998), App. 197. As a result, Slack was not permitted to take an appeal of the order dismissing his petition. We granted certiorari. 525 U. S. 1138 (1999). Slack contends that he is entitled to an appeal of the dismissal of his petition, arguing that the District Court was wrong to hold that his 1995 petition was “second or successive.” We agree that Slack’s 1995 petition was not second or successive, but first we must resolve two preliminary questions.

II

Before AEDPA, appellate review of the dismissal of a ha-beas petition was governed by a version of 28 U. S. C. § 2253 enacted in 1948. Act of June 25, 1948, 62 Stat. 967. The statute provided no appeal could be taken from the final order in a habeas corpus proceeding “unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.” Ibid. The statute did not explain the standards for the issuance of a CPC, but the Court established what a prisoner must show to obtain a CPC in Barefoot v. Estelle, 463 U. S. 880 (1983): “a substantial showing of the denial of a federal right.” Id., at 893 (citation and brackets omitted).

Effective April 24,1996, AEDPA amended § 2253. As relevant here, AEDPA added subsection (c), which provides:

“(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
“(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
“(B) the final order in a proceeding under section 2255.
“(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
“(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).” 28 U. S. C. § 2253(c) (1994 ed., Supp. III).

The issue we consider at the outset is whether the pre- or post-AEDPA version of §2253 controls Slack’s right to appeal. In Lindh v. Murphy, 521 U. S. 320 (1997), the Court held that AEDPA’s amendments to 28 U. S. C. §2254, the statute governing entitlement to habeas relief in the district court, applied to cases filed after AEDPA’s effective date. 521 U. S., at 327. Slack contends that Lindh means § 2253(e) does not apply to him because his case was commenced in the District Court pre-AEDPA. That position is incorrect. For purposes of implementing the holding in Lindh, it must be recognized that §2254 is directed to proceedings in the district courts while §2253 is directed to proceedings in the appellate courts. Just as §2254 applies to cases filed in the trial court post-AEDPA, §2253 applies to appellate proceedings initiated post-AEDPA. True, Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court’s ruling, for cases commenced there pre-AEDPA; but post-AEDPA law governs the right to appeal in cases such as the one now before us.

While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. Hohn v. United States, 524 U. S. 236, 241 (1998); Mackenzie v. A. Engelhard & Sons Co., 266 U. S. 131 (1924). We have described proceedings in the courts of appeals as “appellate cases.” E. g., Order of Apr. 30, 1991, 500 U. S. 1009 (amendments to Federal Rules of Appellate Procedure “shall govern all proceedings in appellate cases thereafter commenced”). Under AEDPA, an appellate case is commenced when the application for a COA is filed. Hohn, supra, at 241. When Congress instructs us (as Lindh says it has) that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court. Thus, § 2253(c) governs appellate court proceedings filed after AEDPA’s effective date. We see no indication that Congress intended to tie application of the provisions to the date a petition was filed in the district court. The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal. Hohn, supra, at 248; cf. Lindh, supra, at 327. Because Slack sought appellate review two years after AEDPA’s effective date, § 2253(c) governs his right to appeal.

We further note that we applied § 2253 in our post-Lindh decision in Hohn, a case which arrived in the same posture as this case. Like Slack, Hohn argued § 2253(c) did not apply because his petition had been filed in the District Court before AEDPA’s effective date. Brief for Petitioner in Hohn v. United States, O. T. 1997, No. 96-8986, pp. 40-44. Though our opinion did not discuss whether § 2253(c) applied to Hohn, we would have had no reason to reach the issue we did resolve, that we had statutory certiorari jurisdiction to review the denial of a COA, if AEDPA did not apply at all. Our disposition today is consistent with Hohn. AEDPA governs the conditions of Slack’s appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.

III

As AEDPA applied, the Court of Appeals. should have treated the notice of appeal as an application for a COA. Fed. Rule App. Proc. 22(b); Fed. Rule Civ. Proc. 8(f); see also Holm, swpra, at 240. To evaluate whether the Court of Appeals should have granted a COA, we must determine what the habeas applicant must show to satisfy the requirements of § 2258(c).

Citing § 2253(e)’s requirement that a COA may issue only upon the “substantial showing of the denial of a constitutional right,” the State contends that no appeal can be taken if the District Court relies on procedural grounds to dismiss the petition. According to the State, only constitutional rulings may be appealed. Under this view, a state prisoner who can demonstrate he was convicted in violation of the Constitution and who can demonstrate that the district court was wrong to dismiss the petition on procedural grounds would be denied relief. We reject this interpretation. The writ of habeas corpus plays a vital role in protecting constitutional rights. In setting forth the preconditions for issuance of a COA under § 2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal.

Our conclusion follows from AEDPA’s present provisions, which incorporate earlier habeas corpus principles. Under AEDPA, a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 12253(c) (1994 ed., Supp. III). Except for substituting the word “constitutional” for the word “federal,” § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle, 463 U. S., at 894. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in § 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word “constitutional.” See Williams v. Taylor, ante, at 434. To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “ ‘adequate to deserve encouragement to proceed further.’ ” Barefoot, supra, at 893, and n. 4 (“sum[ming] up” the “ ‘substantial showing’ ” standard).

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.

Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that the “Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of,” Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring), allows and encourages the court to first resolve procedural issues. The Ashwander rule should inform the court’s discretion in this regard.

In this ease, Slack did not attempt to make a substantial showing of the denial of a constitutional right, instead arguing only that the District Court’s procedural rulings were wrong. We will not attempt to détermine whether Slack could make the required showing of constitutional error, for the issue was neither briefed nor presented below because of the view that the CPC, rather than COA, standards applied. It will be necessary to consider the matter upon any remand for further proceedings. We will, however, address the second component of the § 2253(e) inquiry, whether jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect. The issue has been discussed in the briefs presented to us; it is the question upon which we granted certiorari; and its resolution would end the case, were we to decide the matter in the State’s favor.

The District Court dismissed claims Slack failed to raise in his 1991 petition based on its conclusion that Slack’s 1995 petition was a second or successive habeas petition. This conclusion was wrong. A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.

Slack commenced this habeas proceeding in the District Court in 1995, before AEDPA’s effective date. Because the question whether Slack’s petition was second or successive implicates his right to relief in the trial court, pre-AEDPA law governs, see Lindh v. Murphy, 521 U. S. 320 (1997), though we do not suggest the definition of second or successive would be different under AEDPA. See Stewart v. Martinez-Villareal, 523 U. S. 637 (1998) (using pre-AEDPA law to interpret AEDPA’s provision governing “second or successive habeas applications”). The parties point us to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts as controlling the issue. The Rule incorporates our prior decisions regarding successive petitions and abuse of the writ, McCleskey v. Zant, 499 U. S. 467, 487 (1991), and states: “A second or successive petition [alleging new and different grounds] may be dismissed if... the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” As the text demonstrates, Rule 9(b) applies only to “a second or successive petition.”

The phrase “second or successive petition” is a term of art given substance in our prior habeas corpus cases. The Court’s decision in Rose v. Lundy, 455 U. S., at 510, instructs us in reaching our understanding of the term. Rose v. Lundy held that a federal district court must dismiss habeas corpus petitions containing both exhausted and unexhausted claims. The opinion, however, contemplated that the prisoner could return to federal court after the requisite exhaustion. Id., at 520 (“Those prisoners who . . . submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims”). It was only if a prisoner declined to return to state court and decided to proceed with his exhausted claims in federal court that the possibility arose that a subsequent petition would be considered second or successive and subject to dismissal as an abuse of the writ. Id., at 520-521 (plurality opinion) (“[A] prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions”).

This understanding of the second or successive rule was confirmed two Terms ago when we wrote as follows: “[N]one of our cases . . . have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition.” Stewart v. Martinez-Villareal, supra, at 644. We adhere to this analysis. A petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as "any other first petition” and is not a second or successive petition.

The State contends that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. Neither Rose v. Lundy nor Martinez-Villareal requires this result, which would limit a prisoner to claims made in a pleading that is often uncounseled, handwritten, and pending in federal court only until the State identifies one unexhausted claim. The proposed rule would bar the prisoner from raising nonfrivolous claims developed in the subsequent state exhaustion proceedings contemplated by the Rose dismissal, even though a federal court had yet to review a single constitutional claim. This result would be contrary to our admonition that the complete exhaustion rule is not to "trap the unwary pro se prisoner.” Rose supra, at 520 (internal quotation marks omitted). It is instead more appropriate to treat the initial mixed petition as though it had not been filed, subject to whatever conditions the court attaches to the dismissal. Rose v. Lundy dictated that, whatever particular claims the petition contained, none could be considered by the federal court.

Slack’s 1991 petition was dismissed under the procedure established in Rose v. Lundy. No claim made in Slack’s 1991 petition was adjudicated during the three months it was pending in federal court. As such, the 1995 petition should not have been dismissed on the grounds that it was second or successive. Reasoning to the contrary found in the Court of Appeals’ Farmer decision, rendered before Martinez-Villareal, is incorrect. See also In re Turner, 101 F. 3d 1323 (CA9 1997) (refusing to apply rules governing second or successive petitions to a petitioner whose prior habeas petition had been dismissed for failure to exhaust). Our view that established practice demonstrates that Slack’s 1995 petition is not second or successive is confirmed as well by opinions of the Courts of Appeals which have addressed the point under similar circumstances. E. g., Carlson v. Pitcher, 137 F. 3d 416, 420 (CA6 1998) (“We join with every other court to consider the question, and hold that a habeas petition filed after a previous petition has been dismissed on exhaustion grounds is not a 'second or successive’ petition”); Turner, supra; Christy v. Horn, 115 F. 3d 201, 208 (CA3 1997); Dickinson v. Maine, 101 F. 3d 791 (CA1 1996); Camarano v. Irvin, 98 F. 3d 44, 45-46 (CA2 1996).

The State complains that this rule is unfair. The filing of a mixed petition in federal court requires it to appear and to plead failure to exhaust. The petition is then dismissed without prejudice, allowing the prisoner to make a return trip through the state courts to exhaust new claims. The State expresses concern that, upon exhaustion, the prisoner would return to federal court but again file a mixed petition, causing the process to repeat itself. In this manner, the State contends, a vexatious litigant could inject undue delay into the collateral review process. To the extent the tactic would become a problem, however, it can be countered without upsetting the established meaning of a second or successive petition.

First, the State remains free to impose proper procedural bars to restrict repeated returns to state court for postcon-viction proceedings. Second, provisions of AEDPA may bear upon the question in cases to which the Act applies. AEDPA itself demonstrates that Congress may address matters relating to exhaustion and mixed petitions through means other than rules governing “second or successive” petitions. E. g., 28 U.S.C. §2254(b)(2) (1994 ed., Supp. III). Third, the Federal Rules of Civil Procedure, applicable as a general matter to habeas cases, vest the federal courts with due flexibility to prevent vexatious litigation. As Slack concedes, in the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rule Civ. Proc. 41(b). In this case, however, the initial petition was dismissed without condition and without prejudice. We reject the State’s argument that refusing to give a new meaning to the established term “second or successive” opens the door to the abuses described.

IV

Slack has demonstrated that reasonable jurists could conclude that the District Court’s abuse of the writ holding was wrong, for we have determined that a habeas petition filed after an initial petition was dismissed under Rose v. Lundy without an adjudication on the merits is not a “second or successive” petition. Whether Slack is otherwise entitled to the issuance of a COA is a question to be resolved first upon remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Souter and Justice Breyer join, concurring in part and concurring in the judgment.

With respect to the issue resolved in Part II of the Court’s opinion, I agree with the Courts of Appeals that have held that the pre-AEDPA version of 28 U. S. C. § 2253 governs the right to appeal with respect to an appeal noticed after the effective date of AEDPA in a habeas corpus proceeding commenced prior to that date. See Fuller v. Roe, 182 F. 3d 699, 702 (CA9 1999) (per curiam); Crowell v. Walsh, 151 F. 3d 1050, 1051-1052 (CADC 1998); Tejeda v. Dubois, 142 F. 3d 18, 22, n. 4 (CA1 1998); Berrios v. United States, 126 F. 3d 430, 431, n. 2 (CA2 1997); United States v. Kunzman, 125 F. 3d 1363, 1364, n. 2 (CA10 1997); United States v. Skandier, 125 F. 3d 178, 179-182 (CA3 1997); Hardwick v. Singletary, 122 F. 3d 935, 936 (per curiam), vacated in part on other grounds, 126 F. 3d 1312 (CA11 1997) (per curiam); Arredondo v. United States, 120 F. 3d 639, 640 (CA6 1997); United States v. Carter, 117 F. 3d 262, 264 (CA5 1997) (per curiam); but see Tiedeman v. Benson, 122 F. 3d 518, 520-521 (CA8 1997).

I do, however, join the balance of the Court’s opinion and its judgment.

Justice Scalia,

with whom Justice Thomas joins, concurring in part and dissenting in part.

I join the opinion of the Court, except for its discussion in Parts III and IV of whether Slack’s postexhaustion petition was second or successive. I believe that the Court produces here, as it produced in a different respect in Stewart v. Martinez-Villareal, 523 U. S. 637 (1998), see id., at 646 (Scalia, J., dissenting), a distortion of the natural meaning of the term “second or successive.”

The opinion relies on Martinez-Villareal, together with Rose v. Lundy, 455 U. S. 509 (1982), to conclude that a prisoner whose federal petition is dismissed to allow exhaustion may return to federal court without having his later petition treated as second or successive, regardless of what claims it contains. Neither the holdings nor even the language of those opinions suggest that proposition. As for holdings: Martinez-Villareal did not even involve the issue of exhaustion, and so has no bearing upon the present case. The narrow holding of Rose v. Lundy was that a habeas petition containing both exhausted and unexhausted claims must be dismissed, but it can be fairly said to have embraced the proposition that the petitioner could return with the same claims after they all had been exhausted. This latter proposition could be thought to rest upon the theory that a petition dismissed for lack of exhaustion is a petition that never existed, so that any other later petition would not be second or successive. Or it could be thought to rest upon the theory that the later refiling of the original claims, all of them now exhausted, is just a renewal of the first petition, implicitly authorized by the dismissal to permit exhaustion. The former theory is counterfactual; the latter is quite plausible.

The language the Court quotes from Rose and Martinez-Villareal also does not justify the Court’s mixed-petitions-don’t-count theory. The quotation from Rose says only that “ ‘prisoners who ... submit mixed petitions ... are entitled to . . . exhaust the remainder of their claims’” Ante, at 486 (quoting Rose, supra, at 520 (emphasis added)). This does not suggest that they are entitled to add new claims, or to return, once again, without accomplishing the exhaustion that the court dismissed the petition to allow. And the quotation from Martinez-Villareal indicates only that when a prisoner whose habeas petition was dismissed for failure to exhaust state remedies “‘then did exhaust those remedies’ ” and refile in federal court, the court “ ‘could adjudicate these claims under the same standard as would govern those made in any other first petition.’” Ante, at 487 (quoting Martinez-Villareal, 528 U. S., at 644 (emphasis added)). This does not require treating the later filed petition as a “first” petition regardless of whether it bears any resemblance to the petition initially filed. In fact, Martinez-Villareal clearly recognized the potential significance of raising a new claim rather than merely renewing an old one: It held that a petition raising a claim of incompetence to be executed previously dismissed as premature was not second or successive, but expressly distinguished, and left open, the situation where the claim had not been raised in the earlier petition. See id., at 645, n.

The State understandably fears the consequences of the Court’s approach, which would allow federal petitions to be repeatedly filed and dismissed for lack of exhaustion, requiring the State repeatedly to appear and expend its resources, with no help in sight from supposed limitations on “second or successive” petitions. The Court reassuringly observes that this problem can be countered in other ways, without “upsetting the established meaning of a second or successive petition.” Ante, at 489. But as discussed above, it is not “established” that a first petition ceases to be a first petition when it is dismissed to permit exhaustion. And though the problem of repetitive filings after dismissals for lack of exhaustion can of course be countered in other ways, so can the problem of repetitive filings for all other reasons. It happens to be the whole purpose of the “second or successive” provision to solve precisely that problem — directly checking the “vexatious litigant,” ante, at 488, rather than hoping that the courts will use a patchwork of other provisions to achieve the same end. I do not disagree with the Court that district courts may be able to limit repeated filings through appropriate orders pursuant to Federal Rules of Civil Procedure 41(a) and (b). This burden on district courts would not be necessary, however — and the States would not be remanded to reliance upon the discretion of district judges — if the limitation on “second or successive” petitions were given its natural meaning.

Because I believe petitioner’s inclusion of new and un-exhausted claims in his postexhaustion petition rendered it second or successive, he is not entitled to a certificate of appealability, and I would affirm the decision of the Court of Appeals.


source: Caselaw Access Project

author: Justice Thomas Justice Stevens,

license: Public Domain

text:
    BECK v. PRUPIS et al.
    No. 98-1480.
    Argued November 3, 1999

    Decided April 26, 2000

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 507.

      Jay Starkman argued the cause for petitioner. With him on the briefs were Jane W Moscowitz and Joel S. Magolnick.

      Michael M. Rosenbaum argued the cause for respondents. With him on the brief for respondents Bellezza et al. were Donald P. Jacobs and Richard M. DeAgazio. Frederick Mezey, pro se, filed a brief as respondent.

        Stephen M. Kohn, Michael D. Kohn, and David K. Colapinto filed a brief for the National Whistleblower Center as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Tort Reform Association et al. by Victor E. Schwartz, Mark A Behrens, and Jeffrey L. Gabardi; and for the Washington Legal Foundation et al. by F. Joseph Warin, Daniel J. Popeo, and Paul D. Kamenar.

   Justice Thomas

delivered the opinion of the Court.

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§ 1961-1968 (1994 ed. and Supp. IV), creates a civil cause of action for “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U. S. C. § 1964(c) (1994 ed., Supp. IV). Subsection (d) of § 1962 in turn provides that “[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of [§ 1962].” The question before us is whether a person injured by an overt act done in furtherance of a RICO conspiracy has a cause of action under § 1964(c), even if the overt act is not an act of racketeering. We conclude that such a person does not have a cause of action under § 1964(c).

I

A

Congress enacted RICO as Title IX of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, for the purpose of “seeking] the eradication of organized crime in the United States,” id., at 923. Congress found that “organized crime in the United States [had become] a highly sophisticated, diversified, and widespread activity that annually drain[ed] billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud, and corruption.” Id., at 922. The result was to “weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens.” Id., at 923. Finding the existing “sanctions and remedies available to the Government [to be] unnecessarily limited in scope and impact,” Congress resolved to address the problem of organized crime “by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Ibid.

RICO attempts to accomplish these goals by providing severe criminal penalties for violations of § 1962, see § 1963, and also by means of a civil cause of action for any person “injured in his business or property by reason of a violation of section 1962,” 18 U. S. C. § 1964(c) (1994 ed., Supp. IV). Section 1962, in turn, consists of four subsections: Subsection (a) makes it “unlawful for any person who has received any income derived, direetly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce”; subsection (b) makes it “unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce”; subsection (e) makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly* in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt”; and, finally, subsection (d) makes it unlawful “for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.”

B

Petitioner, Robert A. Beck II, is a former president, CEO, director, and shareholder of Southeastern Insurance Group (SIG). Respondents, Ronald M. Prupis, Leonard Bellezza, William Paulus, Jr., Ernest S. Sabato, Harry Olstein, Frederick C. Mezey, and Joseph S. Littenberg, are former senior officers and directors of SIG. Until 1990, when it declared bankruptcy, SIG was a Florida insurance holding company with three operating subsidiaries, each of which was engaged in the business of writing surety bonds for construction contractors.

Beginning in or around 1987, certain directors and officers of SIG, including respondents, began engaging in acts of racketeering. They created an entity called Construction Performance Corporation, which demanded fees from contractors in exchange for qualifying them for SIG surety bonds. Respondents also diverted corporate funds to personal uses and submitted false financial statements to regulators, shareholders, and creditors. During most of the time he was employed at SIG, petitioner was unaware of these activities. In early 1988, however, petitioner discovered respondents’ unlawful conduct and contacted regulators concerning the financial statements. Respondents then orchestrated a scheme to remove petitioner from the company. They hired an insurance consultant to write a false report suggesting that petitioner had failed to perform his material duties. The day after this report was presented to the SIG board of directors, the board fired petitioner, relying on a clause in his contract providing for termination in the event of an “inability or substantial failure to perform [his] material duties.” App. 104. Petitioner sued respondents, asserting, among other things, a civil cause of action under §1964(c). In particular, petitioner claimed that respondents used or invested income derived from a pattern of racketeering activity to establish and operate an enterprise, in violation of § 1962(a); acquired and maintained an interest in and control of their enterprise through a pattern of racketeering activity, in violation of § 1962(b); engaged in the conduct of the enterprise’s affairs through a pattern of racketeering activity, in violation of § 1962(c); and, most importantly for present purposes, conspired to commit the aforementioned acts, in violation of § 1962(d). With respect to this last claim, petitioner’s theory was that his injury was proximately caused by an overt act — namely, the termination of his employment — done in furtherance of respondents’ conspiracy, and that § 1964(c) therefore provided a cause of action. Respondents filed a motion for summary judgment, arguing that employees who are terminated for refusing to participate in RICO activities, or who threaten to report RICO activities, do not have standing to sue under RICO for damages from their loss of employment. The District Court agreed and dismissed petitioner’s RICO conspiracy claim. The Court of Appeals affirmed, holding that a cause of action under § 1964(e) for a violation of § 1962(d) is not available to a person injured by an overt act in furtherance of a RICO conspiracy unless the overt act is an act of racketeering. 162 F. 3d 1090, 1098 (CA11 1998). Since the overt act that allegedly caused petitioner’s injury was not an act of racketeering, see § 1961(1), it could not support a civil cause of action. The court held, “RICO was enacted with an express target — racketeering activity — and only those injuries that are proximately caused by racketeering activity should be actionable under the statute.” Ibid.

We granted certiorari, 526 U. S. 1158 (1999), to resolve a conflict among the Courts of Appeals on the question whether a person injured by an overt act in furtherance of a conspiracy may assert a civil RICO conspiracy claim under § 1964(c) for a violation of § 1962(d) even if the overt act does not constitute “racketeering activity.” The majority of the Circuits to consider this question have answered it in the negative. See, e. g., Bowman v. Western Auto Supply Co., 985 F. 2d 383, 388 (CA8), cert. denied, 508 U. S. 957 (1993); Miranda v. Ponce Fed. Bank, 948 F. 2d 41, 48 (CA1 1991); Reddy v. Litton Indus., Inc., 912 F. 2d 291, 294-295 (CA9 1990), cert. denied, 502 U. S. 921.(1991); Hecht v. Commerce Clearing House, Inc., 897 F. 2d 21, 25 (CA2 1990). Other Circuits have allowed RICO conspiracy claims where the overt act was, as in the instant case, merely the termination of employment, and was not, therefore, racketeering activity. See, e.g., Khurana v. Innovative Health Care Systems, Inc., 130 F. 3d 143, 153-154 (CA5 1997), vacated sub nom. Teel v. Khurana, 525 U. S. 979 (1998); Schiffels v. Kemper Financial Services, Inc., 978 F. 2d 344, 348-349 (CA7 1992); Shearin v. E. F. Hutton Group, Inc., 885 F. 2d 1162, 1168-1169 (CA3 1989).

I — I 1 — 1

This case turns on the combined effect of two provisions of RICO that, read in conjunction, provide a civil cause of action for conspiracy. Section 1964(c) states that a cause of action is available to anyone “injured ... by reason of a violation of section 1962.” Section 1962(d) makes it unlawful for a person “to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” To determine what it means to be “injured ... by reason of” a “conspiracy],” we turn to the well-established common law of civil conspiracy, As we have said, when Congress uses language with a settled meaning at common law, Congress

“presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use. will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U. S. 246, 263 (1952).

See Molzof v. United States, 502 U. S. 301, 307 (1992) (quoting Morissette, supra, at 263); NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981).

By the time of RICO’s enactment in 1970, it was widely accepted that a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious. See, e. g., 4 Restatement (Second) of Torts §876, Comment b (1977) (“The mere common plan, design or even express agreement is not enough for liability in itself, and there must be acts of a tortious character in carrying it into execution”); W. Prosser, Law of Torts §46, p. 293 (4th ed. 1971) (“It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable” (footnotes omitted)); Satin v. Satin, 69 App. Div. 2d 761, 762, 414 N. Y. S. 2d 570 (1979) (Memorandum Decision) (“There is no tort of civil conspiracy in and of itself. There must first be pleaded specific wrongful acts which might constitute an independent tort”); Cohen v. Bowdoin, 288 A. 2d 106, 110 (Me. 1972) (“ ‘[Conspiracy’ fails as the basis for the imposition of civil liability absent the actual commission of some independently recognized tort; and when such separate tort has been committed, it is that tort, and not the fact of combination, which is the foundation of the civil liability”); Earp v. Detroit, 16 Mich. App. 271, 275, 167 N. W. 2d 841, 845 (1969) (“Recovery may be had from parties on the theory of concerted action as long as the elements of the separate and actionable tort are properly proved”); Mills v. Hansell, 378 F. 2d 53 (CA5 1967) (per curiam) (affirming dismissal of conspiracy to defraud claim because no defendant committed an actionable tort); J. & C. Ornamental Iron Co. v. Watkins, 114 Ga. App. 688, 691, 152 S. E. 2d 613, 615 (1966) (“[The plaintiff] must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy”); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873, 878 (1963) (“[Conspiracy cannot be made the subject of a civil action unless something is done which without the conspiracy would give a right of action” (internal quotation marks omitted)); Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Assn., 37 N. J. 507, 516, 181 A. 2d 774, 779 (1962) (“[A] conspiracy cannot be made the subject of a civil action unless something has been done which, absent the conspiracy, would give a right of action”); Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957) (holding that a plaintiff who charged the defendants with “conspiring to perpetrate an unlawful purpose” could not recover because the defendants committed no unlawful act); Olmsted, Inc. v. Maryland Casualty Co., 218 Iowa 997, 998, 253 N. W. 804 (1934) (“[A] conspiracy cannot be the subject of a civil action unless something is done pursuant to it which, without the conspiracy, would give a right of action”); Adler v. Fenton, 24 How. 407, 410 (1861) (“[T]he act must be tortious, and there must be consequent damage”).

Consistent with this principle, it was sometimes said that a conspiracy claim was not an independent cause of action, but was only the mechanism for subjecting co-conspirators to liability when one of their member committed a tortious act. Royster v. Baker, 365 S. W. 2d 496, 499, 500 (Mo. 1963) (“[A]n alleged conspiracy by or agreement between the defendants is not of itself actionable. Some wrongful act to the plaintiff’s damage must have been done by one or more of the defendants, and the fact of a conspiracy merely bears on the liability of the various defendants as joint tort-feasors”). See Halberstam v. Welch, 705 F. 2d 472, 479 (CADC 1983) (“Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the 'underlying tort”).

The principle that a civil conspiracy plaintiff must claim injury from an act of a tortious character was so widely accepted at the time of RICQ’s adoption as to be incorporated in the common understanding of “civil conspiracy.” See Bal-lentine’s Law Dictionary 252 (3d ed. 1969) (“It is the civil wrong resulting in damage, and not the conspiracy which constitutes the cause of action”); Black’s Law Dictionary 383 (4th ed. 1968) (“[W]here, in carrying out the design of the conspirators, overt acts are done causing legal damage, the person injured has a right of action” (emphasis added)). We presume, therefore, that when Congress established in RICO a civil cause of action for a person “injured ... by reason of” a “conspiracy],” it meant to adopt these well-established common-law civil conspiracy principles.

Justice Stevens does not challenge our view that Congress meant to incorporate common-law principles when it adopted RICO. Nor does he attempt to make an affirmative case from the common law for his reading of the statute by pointing to a ease in which there was (a) an illegal agreement; (b) injury proximately caused to the plaintiff by a nontortious overt act in furtherance of the agreement; and (c) recovery by the plaintiff. See post, at 508. Instead, he argues only that courts, authoritative commentators, and even dictionaries repeatedly articulated a rule with no meaning or application. We find this argument to be implausible and, accordingly, understand RICO to adopt the common-law principles we have cited. Interpreting the statute in a way that is most consistent with these principles, we conclude that injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO, see n. 7, supra, is not sufficient to give rise to a cause of action under § 1964(c) for a violation of § 1962(d). As at common law, a civil conspiracy plaintiff cannot bring suit under RICO based on injury caused by any act in furtherance of a conspiracy that might have caused the plaintiff injury. Rather, consistency with the common law requires that a RICO conspiracy plaintiff allege injury from an act that is analogous to an “ac[t] of a tortious character,” see 4 Restatement (Second) of Torts §876, Comment b, meaning an act that is independently wrongful under RICO. The specific type of act that is analogous to an act of a tortious character may depend on the underlying substantive violation the defendant is alleged to have committed. However, respondents’ alleged overt act in furtherance of their conspiracy is not independently wrongful under any substantive provision of the statute. Injury caused by such an act is not, therefore, sufficient to give rise to a cause of action under § 1964(c).

Petitioner challenges this view of the statute under the longstanding canon of statutory construction that terms in a statute should not be construed so as to render any provision of that statute meaningless or superfluous. He asserts that under our view of the statute, any person who had a claim for a violation of § 1962(d) would necessarily have a claim for a violation of § 1962(a), (b), or (c). However, contrary to petitioner’s assertions, our interpretation of § 1962(d) does not render it mere surplusage. Under our interpretation, a plaintiff could, through a § 1964(c) suit for a violation of § 1962(d), sue co-conspirators who might not themselves have violated one of the substantive provisions of § 1962.

III

We conclude, therefore, that a person may not bring suit under § 1964(c) predicated on a violation of § 1962(d) for injuries caused by an overt act that is not an act of racketeering or otherwise unlawful under the statute.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Stevens,

with whom Justice Souter joins, dissenting.

For the purpose of decision, I assume — as I think the Court does — that petitioner has alleged an injury proximately caused by an overt act in furtherance of a conspiracy that violated 18 U. S. C. § 1962(d). In my judgment, the plain language of the Racketeer Influenced and Corrupt Organizations Act (RICO) makes it clear that petitioner therefore has a cause of action under § 1964(c), whether or not the overt act is a racketeering activity listed in § 1961(1). The common-law civil conspiracy cases relied upon by the Court prove nothing to the contrary.

A “conspiracy” is an illegal agreement. There is, of course, a difference between the question whether an agreement is illegal and the question whether an admittedly illegal agreement gives rise to a cause of action for damages. Section 1962(d), which makes RICO conspiracies unlawful, addresses the former question; § 1964(c), which imposes civil liability, concerns the latter. Section 1964(c) requires a person to be “injured in his business or property’' by a violation before bringing an action for damages. And because that kind of injury only results from some form of overt act in furtherance of the conspiracy, liability under § 1964(e) naturally requires injury via an overt act. But there is nothing in either § 1962(d) or § 1964(c) requiring the overt act to be a racketeering activity as defined in § 1961(l).

The Court’s central premise is that common-law civil conspiracy cases support the notion that liability cannot be imposed unless the overt act that furthered the conspiracy and harmed the plaintiff was a particular kind of overt act, namely, an act of a tortious character. But the cases cited by the Court do not support that point. First, no case cited by the majority actually parallels the Court’s premise. That is, no case involved a situation in which (a) there was an illegal agreement, (b) there was an injury to the plaintiff proximately caused by an overt act in furtherance of that agreement, but (c) there was a refusal to impose civil liability because the overt act was not itself tortious.

Of the dozen cases cited by the Court, ante, at 501-503, half of them rejected liability because they did not satisfy condition (a) above, i e., there was either no agreement or nothing illegal about the agreement that was made. See Satin v. Satin, 69 App. Div. 2d 761, 762, 414 N. Y. S. 2d 570 (1979) (Memorandum Decision) (“Here, the only such wrongful action is pleaded against [one defendant] alone.... In any event, it is doubtful that there could here be a conspiracy between this individual and his own corporation”); Mills v. Hansell, 378 F. 2d 53, 54 (CA5 1967) (per curiam) (“[W]e feel that the able trial judge correctly concluded that . . . there was no misconduct on the part of [the defendants]”); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 346, 31 Cal. Rptr. 873, 878 (1963) (“[Ejmployer . . . had the right (so far as appears) to terminate [plaintiff’s] services without committing a civil wrong”); Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957) (“The fatal defect in plaintiff’s action for conspiracy is that the act committed by defendants . . . was lawful in its nature, . . . and violated no right of plaintiff”); Olmsted, Inc. v. Maryland Casualty Co., 218 Iowa 997, 1003, 253 N. W. 804, 807 (1934) (“A conspiracy is not established by the record. There is no direct evidence that such a conspiracy was formed. A conspiracy cannot be inferred from the record, because nothing was done by the alleged conspirators which was unlawful”); Royster v. Baker, 365 S. W. 2d 496, 500 (Mo. 1963) (“[T]he petition does no more than allege that the defendants agreed, or if the term is preferred, conspired, to accomplish lawful acts in a lawful manner”).

Three more cases refused to impose liability because condition (b) was missing; that is, because the plaintiff did not actually suffer any harm. See Earp v. Detroit, 16 Mich. App. 271, 280-282, 167 N. W. 2d 841, 847-848 (1969) (Plaintiff waived any cause of action for conspiracy to invade his privacy by disclosing private information); J. & C. Ornamental Iron Co. v. Watkins, 114 Ga. App. 688, 691-692, 152 S. E. 2d 613, 615 (1966) (“Plaintiff does not allege that it . . . was injured in any way.... [T]he petition contains no allegations of fact showing that plaintiff was injured in any way .... Thus the petition fails to state a cause of action upon any theory”); Adler v. Fenton, 24 How. 407, 411-413 (1861). The remaining three cases found that the plaintiff did state a cause of action and therefore the court did not refuse to impose liability on that ground. See Cohen v. Bowdoin, 288 A. 2d 106, 110 (Me. 1972) (“We decide that the complaint states a claim upon which relief can be granted”); Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Assn., 37 N. J. 507, 516, 181 A. 2d 774, 780 (1962) (“[S]o much of defendants’ motion as sought a dismissal of the complaint as being insufficient in law must fail,” but sustaining defendants’ unrelated privilege defense); Halberstam v. Welch, 705 F. 2d 472, 489 (CADC 1983). The cases cited, in short, simply do not do the work the Court would have them do.

Furthermore, at least some of the cases cited by the Court speak generally of harm via any overt act, and not exclusively of tortious acts. Indeed, some of the sources cited recognize that, at least in certain instances, the agreement itself can give rise to liability for civil conspiracy. And of the nine cases cited in which liability is rejected for failure to state a cause of action, four are the opinions of intermediate state courts and one is the three-page opinion of a Federal District Court — hardly strong evidence of the “widely accepted” premise on which the Court relies. Ante, at 501. Thus, the cases cited by the Court do not at all place its conclusion on any firm footing.

Nevertheless, based on its understanding of the common law, the Court concludes that “a RICO conspiracy plaintiff [must] allege injury from an act that is analogous to an ‘ac[t] of a tortious character.’ ” Ante, at 505. Even assuming that statement is correct, though, it is not at all clear to me why an overt act that “injure[s]” a person “in his business or property” (as § 1964(c) requires) would not be “analogous to an ‘ac[t] of a tortious character’ ” simply because the overt act is not listed in § 1961(1). Nor do I understand why the only qualifying “tortious act” must be “an act that is independently wrongful under RICO” Ante, at 505-506 (emphasis added).

And if one assumes further that the Court is correct to say that the only qualifying “ ‘ae[t] of a tortious character’ ” is “an act that is independently wrongful under RICO,” the analogy does not actually support what the Court has held. The majority holds that § 1964(c) liability could be imposed if the overt acts injuring the plaintiff are among those racketeering activities listed in § 1961(1) — such as murder, bribery, arson, and extortion. Racketeering activities, however, are not “independently wrongful under RICO.” They are, of course, independently wrongful under other provisions of state and federal criminal law, but RICO does not make racketeering activity itself wrongful under the Act. The only acts that are “independently wrongful under RICO” are violations of the provisions of § 1962. Thus, even accepting the Court’s own analogy, if petitioner were harmed by predicate acts defined in § 1961(1), that still would not, by itself, give rise to a cause of action under § 1964(c). Only if those racketeering activities also constituted a violation of § 1962(a), (b), or (c) would petitioner be harmed by “an act that is independently wrongful under RICO.” And, of course, if petitioner were already harmed by conduct covered by one of those provisions, he would hardly need to use § 1962(d)’s conspiracy provision to establish a cause of action.

***

The plain language of RICO makes it clear that petitioner’s civil cause of action under § 1964(c) for a violation of § 1962(d) does not require that he be injured in his business or property by any particular kind of overt act in furtherance of the conspiracy. The Court’s recitation of the common law of civil conspiracy does not prove otherwise, and, indeed, contradicts its own holding.

For these reasons, I respectfully dissent.

       RICO also authorizes the Government to bring civil actions to “prevent and restrain” violations of § 1962. 18 U. S. C. §§ 1964(a) and (b).

       Section 1961(1) contains an exhaustive list of acts of “racketeering,” commonly referred to as “predicate acts.” This list includes extortion, mail fraud, and wire fraud, which were among the 50 separate acts of racketeering alleged by petitioner. Section 1961(4) defines “enterprise” as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”

       On review of the Court of Appeals’ affirmance of summary judgment for respondents, we accept as true the evidence presented by petitioner. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).

       Petitioner’s lawsuit was originally brought as a cross-claim in a shareholders’ derivative suit filed against SIG officers and directors, including petitioner, in the United States District Court for the District of New Jersey. The New Jersey District Court severed petitioner’s claims and transferred them to the Southern District of Florida.

       Although petitioner alleged violations of §§ 1962(a), (b), and (e), the Court of Appeals concluded that he had presented no evidence of violations of subsections (a) and (b). It therefore treated each of petitioner’s substantive RICO claims as alleging a violation of § 1962(e). 162 F. 3d, at 1095, n. 8. The court held that petitioner did not present evidence regarding elements of his § 1962(c) claims and therefore affirmed the District Court’s order granting summary judgment for respondents with respect to those claims. Id., at 1095-1098. Petitioner does not challenge the Court of Appeals’ conclusion with respect to his claims under §§ 1962(a)-(e).

       Petitioner suggests that we should look to criminal, rather than civil, common-law principles to interpret the statute. We have turned to the common law of criminal conspiracy to define what constitutes a violation of § 1962(d), see Salinas v. United States, 522 U.S. 52, 63-65 (1997), a mere violation being all that is necessary for criminal liability. This case, however, does not present simply the question of what constitutes a violation of § 1962(d), but rather the meaning of a civil cause of action for private injury by reason of such a violation. In other words, our task is to interpret §§ 1964(c) and 1962(d) in conjunction, rather than § 1962(d) standing alone. The obvious source in the common law for the combined meaning of these provisions is the law of civil conspiracy.

       Justice Stevens quotes from some of the cases we have cited to suggest that the common law allowed recovery from harm caused by any overt act in furtherance of the conspiracy. See post, at 510-511, n. 5 (dissenting opinion). However, his quotations omit pertinent language. When read in context, it is clear that these passages refer to harm, not from any overt act, but only from overt acts that are themselves tortious. Compare ibid, with Adler v. Fenton, 24 How. 407, 410 (1861) C‘[I]t must be shown that the defendants have done some wrong, that is, have violated some right of theirs .... [I]n these eases the act must be tortious”); Royster v. Baker, 365 S. W. 2d 496, 499 (Mo. 1963) (“Strictly speaking, there has been no distinct form of writ or action of conspiracy; but the action sounds in tort, and is of the nature of an action on the case upon the wrong done under the conspiracy alleged. The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy” (citations and internal quotation marks omitted)); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873, 878 (1963) (“ Tt is well settled that a conspiracy cannot be made the subject of a civil action unless something is done which without the conspiracy would give a right of action’ ”); Earp v. Detroit, 16 Mich. App. 271, 275, 167 N. W. 2d 841, 845 (1969) (“There is no civil action for conspiracy alone. It must be coupled with the commission of acts which damaged the plaintiff. Recovery may be had from parties on the theory of concerted action as long as the elements of the separate and actionable tort are properly proved” (citation omitted)); Halberstam v. Welch, 705 F. 2d 472, 479 (CADC 1983) (stating that civil conspiracy requires “an overt tortious act in furtherance of the agreement that causes injury. ... Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the underlying tort”).

       We disagree, moreover, with Justice Stevens’ interpretation of the grounds for decision in some of the cases we have cited. For example, Justice Stevens reads Mills v. Hansell, 378 F. 2d 53 (CA5 1967) (per curiam), and Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957), to deny recovery for conspiracy because the defendants had not entered into an unlawful agreement. See post, at 508-509. We think the opinions, and the language cited from these opinions by Justice Stevens, make clear that recovery was denied because the defendants had committed no actionable tort, regardless of whether they agreed to commit any such act. See ibid. Likewise, Justice Stevens reads J.&C. Ornamental Iron Co. v. Watkins, 114 Ga. App. 688, 691, 152 S. E. 2d 613, 615 (1966), to deny recovery because the plaintiff had suffered no injury. However, in that ease, the plaintiff’s conspiracy claim was predicated on several alleged torts including fraud, trespass, and malicious interference. Ibid. While the court held that the plaintiff could not recover for conspiracy to maliciously interfere because he had suffered no injury, the plaintiff’s remaining conspiracy allegations were insufficient because the plaintiff did not allege "all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy.” Ibid. Further, Justice Stevens chides us for citing cases in which the court allowed recovery. But in two of these cases the court explicitly grounded its decision on the fact that the plaintiff had identified an actionable independent tort on which the conspiracy claim could be based. See Cohen v. Bowdoin, 288 A. 2d 106, 110 (Me. 1972) (“[I]f [the plaintiff’s conspiracy claim] is to be upheld as stating a claim upon which relief can be granted, it must be on the ground that the complaint sufficiently alleges the actual commission of the separate and independent tort of defamation against the plaintiff”); Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Assn., 37 N. J. 507, 516, 181 A. 2d 774, 779 (1962) (holding that the plaintiffs stated a claim for conspiracy because they alleged an actionable tort). In short, we think that there is ample evidence of the common-law rule we have cited.

       For example, most courts of appeals have adopted the so-called investment injury rule, which requires that a plaintiff suing for a violation of § 1962(a) allege injury from the defendant’s “use or investlment]” of income derived from racketeering activity, see § 1962(a). See, e.g., Crowe v. Henry, 43 F. 3d 198, 205 (CA5 1995); Vemco, Inc. v. Camardella, 23 F. 3d 129, 132 (CA6) (collecting cases), cert, denied, 513 U. S. 1017 (1994). Although we express no view on this issue, arguably a plaintiff suing for a violation of § 1962(d) based on an agreement to violate § 1962(a) is required to allege injury from the “use or invest[ment]” of illicit proceeds.

       Respondents argue that a § 1962(d) claim must be predicated on an actionable violation of §§ 1962(a)-(e). However, the merit of this view is a different (albeit related) issue from the one on which we granted certio-rari, namely, whether a plaintiff can bring a § 1962(d) claim for injury flowing from an overt act that is not an act of racketeering. Therefore, contrary to Justice Stevens’ suggestion, see post, at 511-512, we do not resolve whether a plaintiff suing under § 1964(c) for a RICO conspiracy must allege an actionable violation under §§ 1962(a)-(c), or whether it is sufficient for the plaintiff to allege an agreement to complete a substantive violation and the commission of at least one act of racketeering that caused him injury.

       Those who participate in an illegal agreement to violate the substantive provisions of 11962(a), (b), or (e) have engaged in a conspiracy in violation of § 1962(d). See Salinas v. United States, 522 U. S. 52, 63-65 (1997). Although “[t]here is no requirement of some overt act” to violate § 1962(d), id., at 63, that, of course, does not mean that an agreement alone gives rise to civil liability under § 1964(c).

       Of course, under Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992), the overt act must be the proximate cause of the plaintiff’s injury.

       “[Rjacketeering activity” is defined in §1961(1) to include a slew of state and federal crimes such as murder, bribery, arson, and extortion.

         The Court suggests that three of the eases cited deny recovery because there was no actionable tort — and not, as I have suggested, because there was no illegal agreement or because there was no injury. See ante, at 504-505, n. 8. At best, the Court’s reading only demonstrates that in these cases the question whether the harmful overt act was a tort, on the one hand, and the question whether there was any illegal agreement or harm, on the other hand, are questions of overlapping substance. To the extent that is true, however, the point does not support the Court’s view. Rather, it only proves that the cases cited do not parse out elements (a), (b), and (e) as the Court suggests they do. Moreover, as I stated at the outset, both the Court and I assume that there has been an illegal conspiracy in this case. If the eases the Court cites show that thei'e was no illegal agreement at all because there was no actionable tort, then the cases cited by the Court simply contradict the central premise of the present case, and are therefore inapposite.

       See Earp v. Detroit, 16 Mich. App. 271, 275, 167 N. W. 2d 841, 845 (1969) (“There is no civil action for conspiracy alone.... It must be coupled with the commission of acts which damaged the plaintiff”); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873, 878 (1963) (“‘It is the wrong done and the damage suffered pursuant to . . . the conspiracy itself.... [T]he complaint must state facts which show that a civil wrong was done’ ”); Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957) (“There can be no recovery for the simple existence of a civil conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy.. .. Unless something is actually done by the conspirators pursuant to their combination ... no civil action lies against anyone”); Adler v. Fenton, 24 How. 407, 410 (1861) (“[I]t must be shown that the defendants have done some wrong”); Royster v. Baker, 365 S. W. 2d 496, 499 (Mo. 1963) (“The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy”); Halber-

        stam v. Welch, 705 F. 2d 472, 487 (CADC 1983) (“[A] conspiracy requires: an agreement to do an unlawful act or a lawful act in an unlawful manner; an overt act in furtherance of the agreement by someone participating in it; and injury caused by the act”).

       See Cohen v. Bowdoin, 288 A. 2d 106, 110, n. 4 (Me. 1972) (“We are aware that in particular extraordinary circumstances there has been recognized the existence of a separate self-sufficient and independent tort of ‘conspiracy,’ as a substantive basis of civil liability”); Halberstam, 705 F. 2d, at 477, n. 7; W. Prosser, Law of Torts §46, p. 293 (4th ed. 1971) (“[I]t now seems generally agreed ... that there are certain types of conduct, such as boycotts, in which the element of combination adds such a power of coercion, undue influence or restraint of trade, that it makes unlawful acts which one man alone might legitimately do. It is perhaps pointless to debate whether in such a ease the combination or conspiracy becomes itself the tort, or whether it merely gives a tortious character to the acts done in furtherance of it. On either basis, it is the determining factor in liability”). See also Snipes v. West Flagler Kennel Club, Inc., 105 So. 2d 164, 165-167, and n. 1 (Fla. 1958), where the court upheld liability exclusively on precisely that premise.