author: Justice Souter Justice Breyer,

text:
    CENTRAL LABORERS’ PENSION FUND v. HEINZ et al.
    No. 02-891.
    Argued April 19, 2004
    Decided June 7, 2004

      Thomas C. Goldstein argued the cause for petitioner. With him on the briefs were Jeffery M. Wilday, Patrick J. O’Hara, and Amy Howe.

      John P. Elwood argued the cause for the United States as amicus curiae urging reversal. With him on the brief were
      Solicitor General Olson, Assistant Attorney General O’Con-nor, Deputy Solicitor General Kneedler, Kenneth L. Greene, and John A. Dudeck, Jr.

      David M. Gossett argued the cause for respondents. With him on the brief were Charles A. Rothfeld and Gery R. Gasick.

       Briefs of amici curiae urging reversal were filed for the Central States, Southeast and Southwest Areas Pension Fund by Thomas C. Nyhan, James P. Condon, and John J. Franczyk, Jr.; and for the National Coordinating Committee for Multiemployer Plans et al. by Donald J. Capuana, Sally M. Tedrow, and John M. Mclntire.

        Mary Ellen Signorille and Melvin Radowitz filed a brief for AARP as amicus curiae urging affirmance.
      Briefs of amici curiae were filed for the National Employment Lawyers Association by Stephen R. Bruce and Jeffrey Lewis; and for the Society for Human Resource Management by Peter M. Kelly and Stanley R. Strauss.

   Justice Souter

delivered the opinion of the Court.

With few exceptions, the “anti-cutback” rule of the Employee Retirement Income Security Act of 1974 (ERISA) prohibits any amendment of a pension plan that would reduce a participant’s “accrued benefit.” 88 Stat. 858, 29 U. S. C. § 1054(g). The question is whether the rule prohibits an amendment expanding the categories of postretirement employment that trigger suspension of payment of early retirement benefits already accrued. We hold such an amendment prohibited.

I

Respondents Thomas Heinz and Richard Schmitt (collectively, Heinz) are retired participants in a multiemployer pension plan (hereinafter Plan) administered by petitioner Central Laborers’ Pension Fund. Like most other participants in the Plan, Heinz worked in the construction industry in central Illinois before retiring, and by 1996, he had accrued enough pension credits to qualify for early retirement payments under a defined benefit “service only” pension. This scheme pays him the same monthly retirement benefit he would have received if he had retired at the usual age, and is thus a form of subsidized benefit, since monthly payments are not discounted even though they start earlier and are likely to continue longer than the average period.

Heinz’s entitlement is subject to a condition on which this case focuses: the Plan prohibits beneficiaries of service only pensions from certain “disqualifying employment” after they retire. The Plan provides that if beneficiaries accept such employment their monthly payments will be suspended until they stop the forbidden work. When Heinz retired in 1996, the Plan defined “disqualifying employment” as any job as “a union or non-union construction worker.” Brief for Respondents 6. This condition did not cover employment in a supervisory capacity, however, and when Heinz took a job in central Illinois as a construction supervisor after retiring, the Plan continued to pay out his monthly benefit.

In 1998, the Plan’s definition of disqualifying employment was expanded by amendment to include any job “ fin any capacity in the construction industry (either as a union or nonunion construction worker).’” Ibid. The Plan took the amended definition to cover supervisory work and warned Heinz that if he continued on as a supervisor, his monthly pension payments would be suspended. Heinz kept working, and the Plan stopped paying.

Heinz sued to recover the suspended benefits on the ground that applying the amended definition of disqualifying employment so as to suspend payment of his accrued benefits violated ERISA’s anti-cutback rule. On cross-motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the District Court granted judgment for the Plan, only to be reversed by a divided panel of the Seventh Circuit, which held that imposing new conditions on rights to benefits already accrued was a violation of the anti-cutback rule. 303 F. 3d 802 (CA7 2002). We granted certiorari, 540 U. S. 1045 (2003), in order to resolve the resulting Circuit split, see Spacek v. Maritime Assn., 134 F. 3d 283 (CA5 1998), and now affirm.

II

A

There is no doubt about the centrality of ERISA’s object of protecting employees’ justified expectations of receiving the benefits their employers promise them.

“Nothing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. ERISA does, however, seek to ensure that employees will not be left emptyhanded once employers have guaranteed them certain benefits. . . . [W]hen Congress enacted ERISA, it ‘wanted to . . . mak[e] sure that if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he actually will receive it.’” Lockheed Corp. v. Spink, 517 U. S. 882, 887 (1996) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 375 (1980); citations omitted).

See also J. Langbein & B. Wolk, Pension and Employee Benefit Law 121 (3d ed. 2000) (hereinafter Langbein & Wolk) (“The central problem to which ERISA is addressed is the loss of pension benefits previously promised”).

ERISA’s anti-cutback rule is crucial to this object, and (with two exceptions of no concern here) provides that “[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan ...29 U. S. C. § 1054(g)(1). After some initial question about whether the provision addressed early retirement benefits, see Lang-bein & Wolk 164, a 1984 amendment made it clear that it does. Retirement Equity Act of 1984, § 301(a)(2), 98 Stat. 1451. Now § 204(g) provides that “a plan amendment which has the effect of. .. eliminating or reducing an early retirement benefit... with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits.” 29 U. S. C. § 1054(g)(2).

Hence the question here: did the 1998 amendment to the Plan have the effect of “eliminating or reducing an early retirement benefit” that was earned by service before the amendment was passed? The statute, admittedly, is not as helpful as it might be in answering this question; it does not explicitly define “early retirement benefit,” and it rather circularly defines “accrued benefit” as “the individual’s accrued benefit determined under the plan . . . .” § 1002(23)(A). Still, it certainly looks as though a benefit has suffered under the amendment here, for we agree with the Seventh Circuit that, as a matter of common sense, “[a] participant’s benefits cannot be understood without reference to the conditions imposed on receiving those benefits, and an amendment placing materially greater restrictions on the receipt of the benefit ‘reduces’ the benefit just as surely as a decrease in the size of the monthly benefit payment.” 303 F. 3d, at 805. Heinz worked and accrued retirement benefits under a plan with terms allowing him to supplement retirement income by certain employment, and he was being reasonable if he relied on those terms in planning his retirement. The 1998 amendment undercut any such reliance, paying retirement income only if he accepted a substantial curtailment of his opportunity to do the kind of work he knew. We simply do not see how, in any practical sense, this change of terms could not be viewed as shrinking the value of Heinz’s pension rights and reducing his promised benefits.

B

The Plan’s responses are technical ones, beginning with the suggestion that the “benefit” that may not be devalued is actually nothing more than a “defined periodic benefit the plan is legally obliged to pay,” Brief for Petitioner 28, so that § 204(g) applies only to amendments directly altering the nominal dollar amount of a retiree’s monthly pension payment. A retiree’s benefit of $100 a month, say, is not reduced by a postaccrual plan amendment that suspends payments, so long as nothing affects the figure of $100 defining what he would be paid, if paid at all. Under the Plan’s reading, § 204(g) would have nothing to say about an amendment that resulted even in a permanent suspension of payments. But for us to give the anti-cutback rule a reading that constricted would take textual force majeure, and certainly something closer to irresistible than the provision quoted in the Plan’s observation that accrued benefits are ordinarily “expressed in the form of an annual benefit commencing at normal retirement age,” 29 U. S. C. § 1002(23)(A).

The Plan also contends that, because § 204(g) only prohibits amendments that “eliminate] or reduc[e] an early retirement benefit,” the anti-cutback rule must not apply to mere suspensions of an early retirement benefit. This argument seems to rest on a distinction between “eliminat[e] or re-duele]” on the one hand, and “suspend” on the other, but it just misses the point. No one denies that some conditions enforceable by suspending benefit payments are permissible under ERISA: conditions set before a benefit accrues can survive the anti-cutback rule, even though their sanction is a suspension of benefits. Because such conditions are elements of the benefit itself and are considered in valuing it at the moment it accrues, a later suspension of benefit payments according to the Plan’s terms does not eliminate the benefit or reduce its value. The real question is whether a new condition may be imposed after a benefit has accrued; may the right to receive certain money on a certain date be limited by a new condition narrowing that right? In a given case, the new condition may or may not be invoked to justify an actual suspension of benefits, but at the moment the new condition is imposed, the accrued benefit becomes less valuable, irrespective of any actual suspension.

C

Our conclusion is confirmed by a regulation of the Internal Revenue Service (IRS) that adopts just this reading of § 204(g). When Title I of ERISA was enacted to impose substantive legal requirements on employee pension plans (including the anti-cutback rule), Title II of ERISA amended the Internal Revenue Code to condition the eligibility of pension plans for preferential tax treatment on compliance with many of the Title I requirements. Employee Benefits Law 47, 171-173 (S. Sacher et al. eds., 2d ed. 2000). The result was a “curious duplicate structure” with nearly verbatim replication in the Internal Revenue Code of whole sections of text from Title I of ERISA. Langbein & Wolk 91, ¶ 6. The anti-cutback rule of ERISA § 204(g) is one such section, showing up in substantially identical form as 26 U. S. C. § 411(d)(6). This duplication explains the provision of the Reorganization Plan No. 4 of 1978, § 101, 43 Fed. Reg. 47713 (1978), 92 Stat. 3790, giving the Secretary of the Treasury the ultimate authority to interpret these overlapping anti-cutback provisions. See also Langbein & Wolk 92, ¶ 7 (“The IRS has [regulatory] jurisdiction over . . . benefit acerua[l] and vesting”). Although the pertinent regulations refer only to the Internal Revenue Code version of the anti-cutback rule, they apply with equal force to ERISA § 204(g). See 53 Fed. Reg. 26050,26053 (1988) (“The regulations under section 411 are also applicable to provisions of [ERISA] Title I”).

The IRS has formally taken the position that the anti-cutback rule does not keep employers from specifying in advance of accrual that “[t]he availability of a section 411(d)(6) protected benefit [is] limited to employees who satisfy certain objective conditions ... .” 26 CFR § 1.411(d)-4, A-6(a)(l) (2003). Without running afoul of the rule, for example, plans may say from the outset that a single sum distribution of benefits is conditioned on the execution of a covenant not to compete. § 1.411(d) — 4, A-6(a)(2). And employers are perfectly free to modify the deal they are offering their employees, as long as the change goes to the terms of compensation for continued, future employment: a plan “may be amended to eliminate or reduce section 411(d)(6) protected benefits with respect to benefits not yet accrued . . . .” § 1.411(d)-4, A-2(a)(l). The IRS regulations treat such conditions very differently, however, when they turn up as part of an amendmént adding new conditions to the receipt of benefits already accrued. The rule in that case is categorical: “[t]he addition of... objective conditions with respect to a section 411(d)(6) protected benefit that has already accrued violates section 411(d)(6). Also, the addition of conditions (whether or not objective) or any change to existing conditions with respect to section 411(d)(6) protected benefits that results in any further restriction violates section 411(d)(6).” §1.411(d)-4, A-7. So far as the IRS regulations are concerned, then, the anti-cutback provision flatly prohibits plans from attaching new conditions to benefits that an employee has already earned.

The IRS has, however, told two stories. The Plan points to a provision of the Internal Revenue Manual that supports its position: “[a]n amendment that reduces IRC 411(d)(6) protected benefits on account of [a plan’s disqualifying employment provision] does not violate IRC 411(d)(6).” Internal Revenue Manual 4.72.14.3.5.3(7) (May 4, 2001), available at http://www.irs.gov/irm/part4/ch50sl9.html. And the United States as amicus curiae says that the IRS has routinely approved amendments to plan definitions of disqualifying employment, even when they apply retroactively to accrued benefits. But neither an unreasoned statement in the manual nor allegedly longstanding agency practice can trump a formal regulation with the procedural history necessary to take on the force of law. See generally Note, Omnibus Taxpayers’ Bill of Rights Act: Taxpayers’ Remedy or Political Placebo? 86 Mich. L. Rev. 1787, 1799-1801 (1988) (discussing legal status of the Internal Revenue Manual). Speaking in its most authoritative voice, the IRS has long since approved the interpretation of § 204(g) that we adopt today.

Ill

In criticizing the Seventh Circuit’s reading of § 204(g), the Plan and the United States rely heavily on an entirely separate section of ERISA § 203(a)(3)(B), 29 U. S. C. § 1053(a)(3)(B). Here they claim to find specific authorization to amend suspension provisions retroactively, in terms specific enough to trump any general prohibition imposed by § 204(g). Section 203(a)(3)(B) provides that

“[a] right to an accrued benefit derived from employer contributions shall not be treated as forfeitable solely because the plan provides that the payment of benefits is suspended for such period as [beneficiaries like respondents are] employed ... in the same industry, in the same trade or craft, and the same geographic area covered by the plan, as when such benefits commenced.” 29 U. S. C. § 1053(a)(3)(B).

The Plan’s arguments notwithstanding, § 203(a)(3)(B) is irrelevant to the question before us, for at least two reasons.

First, as a technical matter, § 203(a) addresses the entirely different question of benefit forfeitures. This is a distinct concept: § 204(g) belongs to the section of ERISA that sets forth requirements for benefit accrual (the rate at which an employee earns benefits to put in his pension account), see 29 U. S. C. § 1054, whereas § 203(a)(3)(B) is in the section that regulates vesting (the process by which an employee’s already-accrued pension account becomes irrevocably his property), see 29 U. S. C. § 1053. See generally Nachman Corp., 446 U. S., at 366, n. 10 (“Section 203(a) is a central provision in ERISA. It requires generally that a plan treat an employee’s benefits, to the extent that they have vested by virtue of his having fulfilled age and length of service requirements no greater than those specified in § 203(a)(2), as not subject to forfeiture”). To be sure, the concepts overlap in practical effect, and a single act by a plan might raise both vesting and accrual concerns. But it would be a non sequitur to conclude that, because an amendment does not constitute a prohibited forfeiture under §203, it must not be a prohibited reduction under §204. Just because § 203(a)(3)(B) failed to forbid it would not mean that § 204(g) allowed it.

Second, read most simply and in context, § 203(a)(3)(B) is a statement about the terms that can be offered to plan participants up front and enforced without amounting to forfeiture, not as an authorization to adopt retroactive amendments. Section 203(a), 29 U. S. C. § 1053(a), reads that “[e]ach pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age.” This is a global directive that regulates the substantive content of pension plans; it adds a mandatory term to all retirement packages that a company might offer. Section 203(a)(3)(B), in turn, is nothing more than an explanation of this substantive requirement. Congress wanted to allow employers to condition future benefits on a plan participant’s agreement not to accept certain kinds of postretirement employment, see n. 1, supra, and it recognized that a plan provision to this effect might be seen as rendering vested benefits improperly forfeitable. Accordingly, adding § 203(a)(3)(B) made it clear that such suspension provisions were permissible in narrow circumstances. But critically for present purposes, § 203(a)(3)(B) speaks only to the permissible substantive scope of existing ERISA plans, not to the procedural permissibility of plan amendments. The fact that ERISA allows plans to include a suspension provision going to benefits not yet accrued has no logical bearing on the analysis of how ERISA treats the imposition of such a condition on (implicitly) bargained-for benefits that have accrued already. Section 203(a)(3)(B) is no help to the Plan.

The judgment of the Seventh Circuit is affirmed.

It is so ordered.

Justice Breyer,

with whom The Chief Justice, Justice O’Connor, and Justice Ginsburg join,

concurring.

I join the opinion of the Court on the assumption that it does not foreclose a reading of the Employee Retirement Income Security Act of 1974 that allows the Secretary of Labor, or the Secretary of the Treasury, to issue regulations explicitly allowing plan amendments to enlarge the scope of disqualifying employment with respect to benefits attributable to already-performed services. Cf. Christensen v. Harris County, 529 U. S. 576, 589 (2000) (Souter, J., concurring).

       This suspension provision was adopted on the authority of ERISA § 203(a)(3)(B), 29 U. S. C. § 1053(a)(3)(B). In authorizing such suspensions, Congress seems to have been motivated at least in part by a desire “to protect participants against their pension plan being used, in effect, to subsidize low-wage employers who hire plan retirees to compete with, and undercut the wages and working conditions of employees covered by the plan.” 120 Cong. Rec. 29930 (1974) (statement of Sen. Wiliams regarding § 203(a)(3)(B)). That explains why ERISA permits multiemployer plans to suspend a retiree’s benefits only if he accepts work “in the same industry, in the same trade or craft, and the same geographic area covered by the plan.” 29 U. S. C. § 1053(a)(3)(B)(ii).

       ERISA § 204(g) allows the reduction of accrued benefits by amendment in cases where a plan faces “substantial business hardship,” 29 U. S. C. § 1082(c)(8), and in cases involving terminated multiemployer plans, § 1441.

       “A plan shall be treated as not satisfying the requirements of this section if the accrued benefit of a participant is decreased by an amendment of the plan, other than an amendment described in section 412(c)(8) [of this Code], or [29 U.S.C. §1441].” 26 U. S. C. § 411(d)(6)(A); see also § 411(d)(6)(B) (clarifying that the anti-cutback rule applies to early retirement benefits). Cf. n. 2, supra, and accompanying text (detailing ERISA § 204(g)).

       Nothing we hold today requires the IRS to revisit the tax-exempt status in past years of plans that were amended in reliance on the agency’s representations in its manual by expanding the categories of work that would trigger suspension of benefit payments as to already-accrued benefits. The Internal Revenue Code gives the Commissioner discretion to decline to apply decisions of this Court retroactively. 26 U. S. C. § 7805(b)(8) (“The Secretary may prescribe the extent, if any, to which any ruling (including any judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be applied without retroactive effect”). This would doubtless be an appropriate occasion for exercise of that discretion.

       This is not to say that § 203(a)(3)(B) does not authorize some amendments. Plans are free to add new suspension provisions under § 203(a)(3)(B), so long as the new provisions apply only to the benefits that will be associated with future employment. The point is that this section regulates the contents of the bargain that can be struck between employer and employees as part of the complete benefits package for future employment.

       For analogous reasons, the Plan’s reliance on 26 CFR § 1.411(c)-l(f) (2003) is unavailing. That section provides that, for the purpose of allocating accrued benefits between employer and employee contributions, “[n]o adjustment to an accrued benefit is required on account of any suspension of benefits if such suspension is permitted under section 203(a)(3)(B).” We read this provision as simply establishing that the actual suspension of benefit payments pursuant to an existing suspension provision does not affect the actuarial value of a beneficiary’s total benefits package for the purpose of allocation calculations, since the suspension provision has already been accounted for in the initial valuation. Cf. n. 3, supra. Far from helping the Plan, this regulation tends to support our larger proposition that it is the addition of a suspension condition, not the actual suspension of a benefit, that reduces an employee’s accrued benefit.


source: Caselaw Access Project

author: Justice Thomas

license: Public Domain

text:
    DEPARTMENT OF TRANSPORTATION et al. v. PUBLIC CITIZEN et al.
    No. 03-358.
    Argued April 21, 2004
    Decided June 7, 2004

      Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Hungar, Deputy Assistant Attorney General Clark, Austin C. Schlick, John L. Smeltzer, David C. Shilton, Jeffrey A. Rosen, and Peter J. Plocki.

      Jonathan Weissglass argued the cause for respondents. With him on the brief were Stephen P. Berzon, Gail Ruder-man Feuer, Julie Masters, Adrianna Quintero Somaini, Melissa Lin Perrella, David C. Vladeck, Patrick J Szymanski, David Rosenfeld, William S. Lerach, Patrick J. Coughlin, Albert H. Meyerhoff and Thomas O. McGarity.

       Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Susan L. Durbin and Gordon B. Burns, Deputy Attorneys General, Manuel M. Medeiros, Solicitor General, Tom Greene, Chief Assistant Attorney General, Theodora Berger, Senior Assistant Attorney General, and Craig C. Thompson, Supervising Deputy Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Lisa Madigan of Illinois, Thomas F. Reilly of Massachusetts, Patricia A. Madrid of New Mexico, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Christine O. Gregoire of Washington, and Peggy A. Lautenschlager of Wisconsin; for the American Public Health Association et al. by Hope M. Babcock; for Defenders of Wildlife et al. by Pamela S. Karlan and Sanjay Narayan; for the Eagle Forum Education & Legal Defense Fund by Karen B. Tripp; and for South Coast Air Quality Management District et al. by Barbara Baird and Patricia V. Tubert.

   Justice Thomas

delivered the opinion of the Court.

In this case, we confront the question whether the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852 (codified, as amended, at 42 U. S. C. §§4321-4370f), and the Clean Air Act (CAA), 42 U. S. C. §§ 7401-7671q, require the Federal Motor Carrier Safety Administration (FMCSA) to evaluate the environmental effects of cross-border operations of Mexican-domiciled motor carriers, where FMCSA’s promulgation of certain regulations would allow such cross-border operations to occur. Because FMCSA lacks discretion to prevent these cross-border operations, we conclude that these statutes impose no such requirement on FMCSA.

I

Due to the complex statutory and regulatory provisions implicated in this case, we begin with a brief overview of the relevant statutes. We then turn to the factual and procedural background.

A

1

Signed into law on January 1, 1970, NEPA establishes a “national policy [to] encourage productive and enjoyable harmony between man and his environment,” and was intended to reduce or eliminate environmental damage and to promote “the understanding of the ecological systems and natural resources important to” the United States. 42 U. S. C. §4321. “NEPA itself does not mandate particular results” in order to accomplish these ends. Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 350 (1989). Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake anal-yses of the environmental impact of their proposals and actions. See id., at 349-350. At the heart of NEPA is a requirement that federal agencies

“include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
“(i) the environmental impact of the proposed action, “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
“(iii) alternatives to the proposed action,
“(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
“(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U. S. C. § 4332(2)(C).

This detailed statement is called an Environmental Impact Statement (EIS). The Council of Environmental Quality (CEQ), established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement. See 40 CFR §1500.3 (2003). The CEQ regulations allow an agency to prepare a more limited document, an Environmental Assessment (EA), if the agency’s proposed action neither is categorically excluded from the requirement to produce an EIS nor would clearly require the production of an EIS. See §§ 1501.4(aMb). The EA is to be a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” § 1508.9(a). If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a “finding of no significant impact” (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment. See §§ 1501.4(e), 1508.13.

2

What is known as the CAA became law in 1963, 77 Stat. 392. In 1970, Congress substantially amended the CAA into roughly its current form. 84 Stat. 1713. The 1970 amendments mandated national air quality standards and deadlines for their attainment, while leaving to the States the development of “implementation plan[s]” to comply with the federal standards. Ibid.

In 1977, Congress again amended the CAA, 91 Stat. 749, to prohibit the Federal Government and its agencies from “engaging] in, supporting] in any way or providing] financial assistance for, licensing] or permitting], or approving], any activity which does not conform to [a state] implementation plan.” 42 U. S. C. § 7506(c)(1). The definition of “conformity” includes restrictions on, for instance, “increasing] the frequency or severity of any existing violation of any standard in any area,” or “delaying] timely attainment of any standard ... in any area.” § 7506(c)(1)(B). These safeguards prevent the Federal Government from interfering with the States’ abilities to comply with the CAA’s requirements.

3

FMCSA, an agency within the Department of Transportation (DOT), is responsible for motor carrier safety and registration. See 49 U. S. C. § 113(f). FMCSA has a variety of statutory mandates, including “ensuring]” safety, §31136, establishing minimum levels of financial responsibility for motor carriers, §31139, and prescribing federal standards for safety inspections of commercial motor vehicles, §31142. Importantly, FMCSA has only limited discretion regarding motor vehicle carrier registration: It must grant registration to all domestic or foreign motor carriers that are “willing and able to comply with” the applicable safety, fitness, and financial-responsibility requirements. § 13902(a)(1). FMCSA has no statutory authority to impose or enforce emissions controls or to establish environmental requirements unrelated to motor carrier safety.

B

We now turn to the factual and procedural background of this case. Before 1982, motor carriers domiciled in Canada and Mexico could obtain certification to operate within the United States from the Interstate Commerce Commission (ICC). In 1982, Congress, concerned about discriminatory treatment of United States motor carriers in Mexico and Canada, enacted a 2-year moratorium on new grants of operating authority. Congress authorized the President to extend the moratorium beyond the 2-year period if Canada or Mexico continued to interfere with United States motor carriers, and also authorized the President to lift or modify the moratorium if he determined that doing so was in the national interest. 49 U. S. C. § 10922(0 (1982 ed.). Although the moratorium on Canadian motor carriers was quickly lifted, the moratorium on Mexican motor carriers remained, and was extended by the President.

In December 1992, the leaders of Mexico, Canada, and the United States signed the North American Free Trade Agreement (NAFTA), 32 I. L. M. 605 (1993). As part of NAFTA, the United States agreed to phase out the moratorium and permit Mexican motor carriers to obtain operating authority within the United States’ interior by January 2000. On NAFTA’s effective date (January 1, 1994), the President began to lift the trade moratorium by allowing the licensing of Mexican carriers to provide some bus services in the United States. The President, however, did not continue to ease the moratorium on the timetable specified by NAFTA, as concerns about the adequacy of Mexico’s regulation of motor carrier safety remained.

The Government of Mexico challenged the United States’ implementation of NAFTA’s motor carrier provisions under NAFTA’s dispute-resolution process, and in February 2001, an international arbitration panel determined that the United States’ “blanket refusal” of Mexican motor carrier applications breached the United States’ obligations under NAFTA. App. 279, ¶295. Shortly thereafter, the President made clear his intention to lift the moratorium on Mexican motor carrier certification following the preparation of new regulations governing grants of operating authority to Mexican motor carriers.

In May 2001, FMCSA published for comment proposed rules concerning safety regulation of Mexican motor carriers. One rule (the Application Rule) addressed the establishment of a new application form for Mexican motor carriers that seek authorization to operate within the United States. Another rule (the Safety Monitoring Rule) addressed the establishment of a safety-inspection regime for all Mexican motor carriers that would receive operating authority under the Application Rule.

In December 2001, Congress enacted the Department of Transportation and Related Agencies Appropriations Act, 2002, 115 Stat. 833. Section 350 of this Act, id., at 864, provided that no funds appropriated under the Act could be obligated or expended to review or to process any application by a Mexican motor carrier for authority to operate in the interior of the United States until FMCSA implemented specific application and safety-monitoring requirements for Mexican carriers. Some of these requirements went beyond those proposed by FMCSA in the Application and Safety Monitoring Rules. Congress extended the §350 conditions to appropriations for Fiscal Years 2003 and 2004.

In January 2002, acting pursuant to NEPA’s mandates, FMCSA issued a programmatic EA for the proposed Application and Safety Monitoring Rules. FMCSA’s EA evaluated, the environmental impact associated with three separate scenarios: where the President did not lift the moratorium; where the President did but where (contrary to what was legally possible) FMCSA did not issue any new regulations; and the Proposed Action Alternative, where the President would modify the moratorium and where FMCSA would adopt the proposed regulations. The EA considered the environmental impact in the categories of traffic and congestion, public safety and health, air quality, noise, socioeconomic factors, and environmental justice. Vital to the EA’s analysis, however, was the assumption that there would be no change in trade volume between the United States and Mexico due to the issuance of the regulations. FMCSA did note that § 350’s restrictions made it impossible for Mexican motor carriers to operate in the interior of the United States before FMCSA’s issuance of the regulations. But, FMCSA determined that “this and any other associated effects in trade characteristics would be the result of the modification of the moratorium” by the President, not a result of FMCSA’s implementation of the proposed safety regulations. App. 60. Because FMCSA concluded that the entry of the Mexican trucks was not an “effect” of its regulations, it did not consider any environmental impact that might be caused by the increased presence of Mexican trucks within the United States.

The particular environmental effects on which the EA focused, then, were those likely to arise from the increase in the number of roadside inspections of Mexican trucks and buses due to the proposed regulations. The EA concluded that these effects (such as a slight increase in emissions, noise from the trucks, and possible danger to passing motorists) were minor and could be addressed and avoided in the inspections process itself. The EA also noted that the increase of inspection-related emissions would be at least partially offset by the fact that the safety requirements would reduce the number of Mexican trucks operating in the United States. Due to these calculations, the EA concluded that the issuance of the proposed regulations would have no significant impact on the environment, and hence FMCSA, on the same day as it released the EA, issued a FONSI.

On March 19, 2002, FMCSA issued the two interim rules, delaying their effective date until May 3, 2002, to allow public comment on provisions that FMCSA added to satisfy the requirements of §350. In the regulatory preambles, FMCSA relied on its EA and its FONSI to demonstrate compliance with NEPA. FMCSA also addressed the CAA in the preambles, determining that it did not need to perform a “conformity review” of the proposed regulations under 42 U. S. C. § 7506(c)(1) because the increase in emissions from these regulations would fall below the Environmental Protection Agency’s (EPA) threshold levels needed to trigger such a review.

In November 2002, the President lifted the moratorium on qualified Mexican motor carriers. Before this action, however, respondents filed petitions for judicial review of the Application and Safety Monitoring Rules, arguing that the rules were promulgated in violation of NEPA and the CAA. The Court of Appeals agreed with respondents, granted the petitions, and set aside the rules. 316 F. 3d 1002 (CA9 2003).

The Court of Appeals concluded that the EA was deficient because it failed to give adequate consideration to the overall environmental impact of lifting the moratorium on the cross-border operation of Mexican motor carriers. According to the Court of Appeals, FMCSA was required to consider the environmental effects of the entry of Mexican trucks because “the President’s rescission of the moratorium was ‘reasonably foreseeable’ at the time the EA was prepared and the decision not to prepare an EIS was made.” Id., at 1022 (quoting 40 CFR §§1508.7, 1508.8(b) (2003)). Due to this perceived deficiency, the Court of Appeals remanded the case for preparation of a full EIS.

The Court of Appeals also directed FMCSA to prepare a full CAA conformity determination for the challenged regulations. It concluded that FMCSA’s determination that emissions attributable to the challenged rules would be below the threshold levels was not reliable because the agency’s CAA determination reflected the “illusory distinction between the effects of the regulations themselves and the effects of the presidential rescission of the moratorium on Mexican truck entry.” 316 F. 3d, at 1030.

We granted certiorari, 540 U. S. 1088 (2003), and now reverse.

II

An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. § 706(2)(A). See also Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 375-376 (1989); Kleppe v. Sierra Club, 427 U. S. 390, 412 (1976). Here, FMCSA based its FONSI upon the analysis contained within its EA; respondents argue that the issuance of the FONSI was arbitrary and capricious because the EA’s analysis was flawed. In particular, respondents criticize the EA’s failure to take into account the various environmental effects caused by the increase in cross-border operations of Mexican motor carriers.

Under NEPA, an agency is required to provide an EIS only if it will be undertaking a “major Federal actio[n],” which “significantly affect[s] the quality of the human environment.” 42 U. S. C. §4332(2)(C). Under applicable CEQ regulations, “[mjajor Federal action” is defined to “includ[ej actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 CFR §1508.18 (2008). “Effects” is defined to “include: (a) Direct effects, which are caused by the action and occur at the same time and place,” and “(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” §1508.8. Thus, the relevant question is whether the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by Mexican trucks, is an “effect” of FMCSA’s issuance of the Application and Safety Monitoring Rules; if not, FMCSA’s failure to address these effects in its EA did not violate NEPA, ánd so FMCSA’s issuance of a FONSI cannot be arbitrary and capricious.

A

To answer this question, we begin by explaining what this case does not involve. What is not properly before us, despite respondents’ argument to the contrary, see Brief for Respondents 38-41, is any challenge to the EA due to its failure properly to consider possible alternatives to the proposed action (i. e., the issuance of the challenged rules) that would mitigate the environmental impact of the authorization of cross-border operations by Mexican motor carriers. Persons challenging an agency’s compliance with -NEPA must “structure their participation so that it. . . alerts the agency to the [parties’] position and contentions,” in order to allow the agency to give the issue meaningful consideration. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 553 (1978). None of the respondents identified in their comments any rulemaking alternatives beyond those evaluated in the EA, and none urged FMCSA to consider alternatives. Because respondents did not raise these particular objections to the EA, FMCSA was not given the opportunity to examine any proposed alternatives to determine if they were reasonably available. Respondents have therefore forfeited any objeetion to the EA on the ground that it failed adequately to discuss potential alternatives to the proposed action.

Admittedly, the agency bears the primary responsibility to ensure that it complies with NEPA, see ibid., and an EA’s or an EIS’ flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action. But that situation is not before us. With respect to FMCSA’s ability to mitigate, respondents can argue only that FMCSA could regulate emissions from Mexican trucks indirectly, through making the safety-registration process more onerous or by removing older, more polluting trucks through more effective enforcement of motor carrier safety standards. But respondents fail to identify any evidence that shows that any effect from these possible actions would be significant, or even noticeable, for air-quality purposes. The connection between enforcement of motor carrier safety and the environmental harms alleged in this case is also tenuous at best. Nor is it clear that FMCSA could, consistent with its limited statutory mandates, reasonably impose on Mexican carriers standards beyond those already required in its proposed regulations.

B

With this point aside, respondents have only one complaint with respect to the EA: It did not take into account the environmental effects of increased cross-border operations of Mexican motor carriers. Respondents’ argument that FMCSA was required to consider these effects is simple. Under § 350, FMCSA is barred from expending any funds to process or review any applications by Mexican motor carriers until FMCSA implemented a variety of specific application and safety-monitoring requirements for Mexican carriers. This expenditure bar makes it impossible for any Mexican motor carrier to receive authorization to operate within the United States until FMCSA issued the regulations challenged here. The promulgation, of the regulations, the argument goes, would “caus[e]” the entry of Mexican trucks (and hence also cause any emissions such trucks would produce), and the entry of the trucks is “reasonably foreseeable.” 40 CFR § 1508.8 (2003). Thus, the argument concludes, under the relevant CEQ regulations, FMCSA must take these emissions into account in its E A when evaluating whether to produce an EIS.

Respondents’ argument, however, overlooks a critical feature of this case: FMCSA has no ability to countermand the President’s lifting of the moratorium or otherwise categorically to exclude Mexican motor carriers from operating within the United States. To be sure, §350 did restrict the ability of FMCSA to authorize cross-border operations of Mexican motor carriers, but Congress did not otherwise modify FMCSA’s statutory mandates. In particular, FMCSA remains subject to the mandate of 49 U. S. C. § 13902(a)(1), that FMCSA “shall register a person to provide transportation ... as a motor carrier if [it] finds that the person is willing and able to comply with” the safety and financial responsibility requirements established by DOT. (Emphasis added.) Under FMCSA’s entirely reasonable reading of this provision, it must certify any motor carrier that can show that it is willing and able to comply with the various substantive requirements for safety and financial responsibility contained in DOT regulations; only the moratorium prevented it from doing so for Mexican motor carriers before 2001. App. 51-55. Thus, upon the lifting of the moratorium, if FMCSA refused to authorize a Mexican motor carrier for cross-border services, where the Mexican motor carrier was willing and able to comply with the various substantive safety and financial responsibilities rules, it would violate § 13902(a)(1).

If it were truly impossible for FMCSA to comply with both § 350 and § 13902(a)(1), then we would be presented with an irreconcilable conflict of laws. As the later enacted provision, § 350 would quite possibly win out. See Posadas v. Na tional City Bank, 296 U. S. 497, 503 (1936). But FMCSA ocan easily satisfy both mandates: It can issue the application and safety inspection rules required by § 350, and start processing applications by Mexican motor carriers and authorize those that satisfy § 13902(a)(l)’s conditions. Without a conflict, then, FMCSA must comply with all of its statutory mandates.

Respondents must rest, then, on a particularly unyielding variation of “but for” causation, where an agency’s action is considered a cause of an environmental effect even when the agency has no authority to prevent the effect. However, a “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations. As this Court held in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766, 774 (1983), NEPA requires “a reasonably close causal relationship” between the environmental effect and the alleged cause. The Court analogized this requirement to the “familiar doctrine of proximate cause from tort law.” Ibid. In particular, “courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” Id., at 774, n. 7. See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 264, 274-275 (5th ed. 1984) (proximate cause analysis turns on policy considerations and considerations of the “legal responsibility” of actors).

Also, inherent in NEPA and its implementing regulations is a “‘rule of reason,’” which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process. See Marsh, 490 U. S., at 373-374. Where the preparation of an EIS would serve “no purpose” in light of NEPA’s regulatory scheme as a whole, no rule of reason worthy of that title would require an agency to prepare an EIS. See Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 422 U. S. 289, 325 (1975); see also 40 CFR §§ 1500.1(b)-(e) (2003).-

In these circumstances, the underlying policies behind NEPA and Congress’ intent, as informed by the “rule of reason,” make clear that the causal connection between FMCSA’s issuance of the proposed regulations and the entry of the Mexican trucks is insufficient to make FMCSA responsible under NEPA to consider the environmental effects of the entry. The NEPA EIS requirement serves two purposes. First, “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Robertson, 490 U. S., at 349. Second, it “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Ibid. Requiring FMCSA to consider the environmental effects of the entry of Mexican trucks would fulfill neither of these statutory purposes. Since FMCSA has no ability categorically to prevent the cross-border operations of Mexican motor carriers, the environmental impact of the cross-border operations would have no effect on FMCSA’s decisionmaking — FMCSA simply lacks the power to act on whatever information might be contained in the EIS.

Similarly, the informational purpose is not served. The “informational role” of an EIS is to “giv[e] the public the assurance that the agency ‘has indeed considered environmental concerns in its decisionmaking process,’ Baltimore Gas & Electric Co. [v. Natural Resources Defense Council, Inc., 462 U. S. 87, 97 (1983)], and, perhaps more significantly, provid[e] a springboard for public comment” in the agency decisionmaking process itself, ibid. The purpose here is to ensure that the “larger audience,” ibid., can provide input as necessary to the agency making the relevant decisions. See 40 CFR § 1500.1(c) (2003) (“NEPA’s purpose is not to generate paperwork — even excellent paperwork — but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment”); § 1502.1 (“The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government”). But here, the “larger audience” can have no impact on FMCSA’s decisionmaking, since, as just noted, FMCSA simply could not act on whatever input this “larger audience” could provide.

It would not, therefore, satisfy NEPA’s “rule of reason” to require an agency to prepare a full EIS due to the environmental impact of an action it could not refuse to perform. Put another way, the legally relevant cause of the entry of the Mexican trucks is not FMCSA’s action, but instead the actions of the President in lifting the moratorium and those of Congress in granting the President this authority while simultaneously limiting FMCSA’s discretion.

Consideration of the CEQ’s “cumulative impact” regulation does not change this analysis. An agency is required to evaluate the “[cjumulative impact” of its action, which is defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” § 1508.7. The “cumulative impact” regulation required FMCSA to consider the “incremental impact” of the safety rules themselves, in the context of the President’s lifting of the moratorium and other relevant circumstances. But this is exactly what FMCSA did in its EA. FMCSA appropriately and reasonably examined the incremental impact of its safety rules assuming the President’s modification of the moratorium (and, hence, assuming the increase in cross-border operations of Mexican motor carriers). The “cumulative impact” regulation does not require FMCSA to treat the lifting of the moratorium itself, of consequences from the lifting of the moratorium, as an effect of its promulgation of its Application and Safety Monitoring Rules.

C

We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant “cause” of the effect. Hence, under NEPA and the implementing CEQ regulations, the agency need not consider these effects in its EA when determining whether its action is a “major Federal action.” Because the President, not FMCSA, could authorize (or not authorize) cross-border operations from Mexican motor carriers, and because FMCSA has no discretion to prevent the entry of Mexican trucks, its EA did not need to consider the environmental effects arising from the entry.

III

Under the CAA, a federal “department, agency, or instrumentality” may not, generally, “engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity” that violates an applicable state air-quality implementation plan. 42 U. S. C. § 7506(c)(1); 40 CFR § 93.150(a) (2003). Federal agencies must, in many circumstances, undertake a conformity determination with respect to a proposed action, to ensure that the action is consistent with § 7506(c)(1). See 40 CFR §§ 93.150(b), 93.153(a)-(b). However, an agency is exempt from the general conformity determination under the CAA if its action would not cause new emissions to exceed certain threshold emission rates set forth in § 93.153(b). FMCSA determined that its proposed regulations would not cause emissions to exceed the relevant threshold amounts and therefore concluded that the issuance of its regulations would comply with the CAA. App. to Pet. for Cert. 65a-66a, 155a. Critical to its calculations was its consideration of only those emissions that would occur from the increased roadside inspections of Mexican trucks; like its NEPA analysis, FMCSA’s CAA analysis did not consider any emissions attributable to the increased presence of Mexican trucks within the United States.

The EPA’s rules provide that “a conformity determination is required for each pollutant where the total of direct and indirect emissions in a nonattainment or maintenance area caused by a Federal action would equal or exceed” the threshold levels established by the EPA. 40 CFR § 93.153(b) (2003). “Direct emissions” are defined as those covered emissions “that are caused or initiated by the Federal action and occur at the same time and place as the action.” §93.152. The term “[indirect emissions” means covered emissions that

“(1) Are caused by the Federal action, but may occur later in time and/or may be further removed in distance from the action itself but are still reasonably foreseeable; and
“(2) The Federal agency can practicably control and will maintain control over due to a continuing program responsibility of the Federal agency.” Ibid.

Unlike the regulations implementing NEPA, the EPA’s CAA regulations have defined the term “[claused by.” Ibid. In particular, emissions are “[claused by” a federal action if the “emissions . .. would not... occur in the absence of the Federal action.” Ibid. Thus, the EPA has made clear that for purposes of evaluating causation in the conformity review process, some sort of “but for” causation is sufficient.

Although arguably FMCSA’s proposed regulations would be “but for” causes of the entry of Mexican trucks into the United States, the emissions from these trucks are neither “direct” nor “indirect” emissions. First, the emissions from the Mexican trucks are not “direct” because they will not occur at the same time or at the same place as the promulgation of the regulations.

Second, FMCSA cannot practicably control, nor will it maintain control, over these emissions. As discussed above, FMCSA does not have the ability to countermand the President’s decision to lift the moratorium, nor could it act categorically to prevent Mexican carriers from being registered or Mexican trucks from entering the United States. Once the regulations are promulgated, FMCSA would have no ability to regulate any aspect of vehicle exhaust from these Mexican trucks. FMCSA could not refuse to register Mexican motor carriers simply on the ground that their trucks would pollute excessively. FMCSA cannot determine whether registered carriers actually will bring trucks into the United States, cannot control the routes the carriers take, and cannot determine what the trucks will emit. Any reduction in emissions that would occur at the hands of FMCSA would be mere happenstance. It cannot be said that FMCSA “practicably controls]” or “will maintain control” over the vehicle emissions from the Mexican trucks, and it follows that the emissions from the Mexican trucks are not “indirect emissions.” Ibid.; see also Determining Conformity of General Federal Actions to State or Federal Implementation Plans, 58 Fed. Reg. 63214, 63221 (1993) (“The EPA does not believe that Congress intended to extend the prohibitions and responsibilities to eases where, although licensing or approving action is a required initial step for a subsequent, activity that causes emissions, the agency has no control over that subsequent activity”).

The emissions from the Mexican trucks are neither “direct” nor “indirect” emissions caused by the issuance of FMCSA’s proposed regulations. Thus, FMCSA did not violate the CAA or the applicable regulations by failing to consider them when it evaluated whether it needed to perform a full “conformity determination.”

IV

FMCSA did not violate NEPA or the relevant CEQ regulations when it did not consider the environmental effect of the increase in cross-border operations of Mexican motor carriers in its EA. Nor did FMCSA act improperly by not performing, pursuant to the CAA and relevant regulations, a full conformity review analysis for its proposed regulations. We therefore reject respondents’ challenge to the procedures used in promulgating these regulations. Accordingly, 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.

       In 1995, Congress abolished the ICC and transferred most of its responsibilities to the Secretary of Transportation. See ICC Termination Act of 1995, § 101,109 Stat. 803. In 1999, Congress transferred responsibility for motor carrier safety within DOT to the newly created FMCSA. See Motor Carrier Safety Improvement Act of 1999, 113 Stat. 1748.

       Respondents are left with arguing that an EIS would be useful for informational purposes entirely outside FMCSA’s decisionmaking process. See Brief for Respondents 42. But such an argument overlooks NEPA’s core focus on improving agency decisionmaking. See 40 CFR §§ 1500.1, 1500.2,1502.1 (2003).

       The Court of Appeals and respondents contend that the EA contained numerous other errors, but their contentions are premised on the conclusion that FMCSA was required to take into account the increased cross-border operations of Mexican motor carriers.

       Respondents argue that Congress ratified the Court of Appeals’ decision when it, after the lower court’s opinion, reenacted §350 in two appropriations bills. The doctrine of ratification states that “Congress is presumed to be aware of [a] . . . judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U. S. 575, 580 (1978). But this case involves the interpretation of NEPA and the CAA, not §350. Indeed, the precise requirements of §350 were not below, and are not here, in dispute. Hence, congressional reenactment of § 350 tells us nothing about Congress’ view as to the requirements of NEPA and the CAA, and so, on the legal issues involved in this case, Congress has been entirely silent.


author: Justice Breyer Justice Stevens, Justice Souter, Justice Scalia,

text:
    CITY OF LITTLETON, COLORADO v. Z. J. GIFTS D-4, L. L. C., dba CHRISTAL’S
    No. 02-1609.
    Argued March 24, 2004
    Decided June 7, 2004

      J Andrew Nathan argued the cause for petitioner. With him on the briefs were Heidi J. Hugdahl, Scott D. Bergthold, Larry W Berkowitz, and Brad D. Bailey.

      Douglas R. Cole, State Solicitor of Ohio, argued the cause and filed a brief for the State of Ohio et al. as amici curiae
      in support of petitioner under this Court’s Rule 12.6. With him on the brief were Jim Petro, Attorney General of Ohio, Rebecca L. Thomas, Assistant Solicitor, and Dan Schweitzer, and the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Ken Salazar of Colorado, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Thomas J. Miller of Iowa, Thomas F Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and William H. Sorrell of Vermont.

      Michael W. Gross argued the cause for respondent. With him on the brief were Arthur M. Schwartz and Cindy D. Schwartz.

       Briefs of amici curiae urging reversal were filed for the Community Defense Counsel by David R. Langdon and Benjamin W. Bull; and for the National League of Cities et al. by Richard Ruda and Charles A. Rothfeld.

      Briefs of amici curiae urging affirmance were filed for the American Booksellers Foundation for Free Expression et al. by Michael A. Bam-berger; and for the First Amendment Lawyers Association by H. Louis Sirkin.

   Justice Breyer

delivered the opinion of the Court.

In this case we examine a city’s “adult business” licensing ordinance to determine whether it meets the First Amendment’s requirement that such a licensing scheme assure prompt judicial review of an administrative decision denying a license. See FW/PBS, Inc. v. Dallas, 493 U. S. 215 (1990); cf. Freedman v. Maryland, 380 U. S. 51 (1965). We conclude that the ordinance before us, considered on its face, is consistent with the First Amendment’s demands.

I

Littleton, Colorado, has enacted an “adult business” ordinance that requires an “adult bookstore, adult novelty store or adult video store” to have an “adult business license.” Littleton City Code §§3-14-2, 3-14-4 (2003), App. to Brief for Petitioner 13a-20a, 23a. The ordinance defines “adult business”; it requires an applicant to provide certain basic information about the business; it insists upon compliance with local “adult business” (and other) zoning rules; it lists eight specific circumstances the presence of which requires the city to deny a license; and it sets forth time limits (typically amounting to about 40 days) within which city officials must reach a final licensing decision. §§3-14-2, 3-14-3, 3-14-5,3-14-7,3-14-8, id., at 13a-30a. The ordinance adds that the final decision may be “appealed to the [state] district court pursuant to Colorado rules of civil procedure 106(a)(4).” § 3-14-8(B)(3), id., at 30a.

In 1999, the respondent, a company called Z. J. Gifts D-4, L. L. C. (hereinafter ZJ), opened a store that sells “adult books” in a place not zoned for adult businesses. Compare Tr. of Oral Arg. 13 (store “within 500 feet of a church and day care center”) with §3-14-3(B), App. to Brief for Petitioner 21a (forbidding adult businesses at such locations). Instead of applying for an adult business license, ZJ brought this lawsuit attacking Littleton’s ordinance as unconstitutional on its face. The Federal District Court rejected ZJ’s claims; but on appeal the Court of Appeals for the Tenth Circuit accepted two of them, 311 F. 3d 1220, 1224 (2002). The court held that Colorado law “does not assure that [the city’s] license decisions will be given expedited [judicial] review”; hence it does not assure the “prompt final judicial decision’’ that the Constitution demands. Id., at 1238. It also held unconstitutional another ordinance provision (not now before us) on the ground that it threatened lengthy administrative delay — a problem that the city believes it has cured by amending the ordinance. Compare id., at 1233-1234, with § 3-14-7, App. to Brief for Petitioner 27a-28a, and Brief for Petitioner 3. Throughout these proceedings, ZJ’s store has continued to operate.

The city has asked this Court to review the Tenth Circuit’s “judicial review” determination, and we granted certiorari in light of lower court uncertainty on this issue. Compare, e. g., 311 F. 3d, at 1238 (First Amendment requires prompt judicial determination of license denial); Nightclubs, Inc. v. Paducah, 202 F. 3d 884, 892-893 (CA6 2000) (same); Baby Tam & Co. v. Las Vegas, 154 F. 3d 1097, 1101-1102 (CA9 1998) (same); 11126 Baltimore Blvd., Inc. v. Prince George’s County, 58 F. 3d 988, 998-1001 (CA4 1995) (en banc) (same), with Boss Capital, Inc. v. Casselberry, 187 F. 3d 1251, 1256-1257 (CA11 1999) (Constitution requires only prompt access to courts); TK’s Video, Inc. v. Denton County, 24 F. 3d 705, 709 (CA5 1994) (same); see also Thomas v. Chicago Park Dist., 534 U. S. 316, 325-326 (2002) (noting a Circuit split); City News & Novelty, Inc. v. Waukesha, 531 U. S. 278, 281 (2001) (same).

II

The city of Littleton’s claims rest essentially upon two arguments. First, this Court, in applying the First Amendment’s procedural requirements to an “adult business” licensing scheme in FW/PBS, found that the First Amendment required such a scheme to provide an applicant with “prompt access” to judicial review of an administrative denial of the license, but that the First Amendment did not require assurance of a “prompt judicial determination” of the applicant’s legal claim. Second, in any event, Colorado law satisfies any “prompt judicial determination” requirement. We reject the first argument, but we accept the second.

A

The city’s claim that its licensing scheme need not provide a “prompt judicial determination” of an applicant’s legal claim rests upon its reading of two of this Court’s eases, Freedman and FW/PBS. In Freedman, the Court considered the First Amendment’s application to a “motion picture censorship statute” — a statute that required an “‘owner or lessee’ ” of a film, prior to exhibiting a film, to submit the film to the Maryland State Board of Censors and obtain its approval. 380 U. S., at 52, and n. 1 (quoting Maryland statute). It said, “a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Id., at 58. The Court added that those safeguards must include (1) strict time limits leading to a speedy administrative decision and minimizing any “prior restraint”-type effects, (2) burden of proof rules favoring speech, and (3) (using language relevant here) a “procedure” that will “assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.” Id., at 58-59 (emphasis added).

In FW/PBS, the Court considered the First Amendment’s application to a city ordinance that “regulates sexually oriented businesses through a scheme incorporating zoning, licensing, and inspections.” 493 U. S., at 220-221. A Court majority held that the ordinance violated the First Amendment because it did not impose strict administrative time limits of the kind described in Freedman. In doing so, three Members of the Court wrote that “the full procedural protections set forth in Freedman are not required,” but that nonetheless such a licensing scheme must comply with Freedman's “core policy” — including (1) strict administrative time limits and (2) (using language somewhat different from Freedman's) “the possibility of prompt judicial review in the event that the license is erroneously denied." 493 U. S., at 228 (opinion of O’Connor, J.) (emphasis added). Three other Members of the Court wrote that all Freedman’s safeguards should apply, including Freedman’s requirement that “a prompt judicial determination must be available.” 493 U. S., at 239 (Brennan, J., concurring in judgment). Three Members of the Court wrote in dissent that Freedman’s requirements did not apply at all. See 493 U. S., at 244-245 (White, J., joined by Rehnquist, C. J., concurring in part and dissenting in part); id,., at 250 (Scalia, J., concurring in part and dissenting in part).

The city points to the differing linguistic descriptions of the “judicial review” requirement set forth in these opinions. It concedes that Freedman, in listing constitutionally necessary “safeguards,” spoke of the need to assure a “prompt final judicial decision.” 380 U. S., at 59. But it adds that Justice O’Connor’s controlling plurality opinion in FW/ PBS did not use the word “decision,” instead speaking only of the “possibility of prompt judicial review.” 493 U. S., at 228 (emphasis added); see also id., at 229 (“an avenue for prompt judicial review”); id., at 230 (“availability of prompt judicial review”). This difference in language between Freedman and FW/PBS, says the city, makes a major difference: The First Amendment, as applied to an “adult business” licensing scheme, demands only an assurance of speedy access to the courts, not an assurance of a speedy court decision.

In our view, however, the city’s argument makes too much of too little. While Justice O’Connor’s FW/PBS plurality opinion makes clear that only Freedman’s “core” requirements apply in the context of “adult business” licensing schemes, it does not purport radically to alter the nature of those “core” requirements. To the contrary, the opinion, immediately prior to its reference to the “judicial review” safeguard, says:

“The core policy underlying Freedman is that the license for a First Amendment-protected business must be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech. Thus, the first two [Freedman] safeguards are essential....” 493 U. S., at 228.

These words, pointing out that Freedman's “judicial review” safeguard is meant to prevent “undue delay,” 493 U. S., at 228, include judicial, as well as administrative, delay. A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a license from being “issued within a reasonable period of time.” Ibid. Nothing in the opinion suggests the contrary. Thus we read that opinion’s reference to “prompt judicial review,” together with the similar reference in Justice Brennan’s separate opinion (joined by two other Justices), see id., at 239, as encompassing a prompt judicial decision. And we reject the city’s arguments to the contrary.

B

We find the second argument more convincing. In effect that argument concedes the constitutional importance of assuring a “prompt” judicial decision. It concedes as well that the Court, illustrating what it meant by “prompt” in Freedman, there set forth a “model” that involved a “hearing one day after joinder of issue” and a “decision within two days after termination of the hearing.” 380 U. S., at 60. But the city says that here the First Amendment nonetheless does not require it to impose 2- or 3-day time limits; the First Amendment does not require special “adult business” judicial review rules; and the First Amendment does not insist that Littleton write detailed judicial review rules into the ordinance itself. In sum, Colorado’s ordinary “judicial review” rules offer adequate assurance, not only that access to the courts can be promptly obtained, but also that a judicial decision will be promptly forthcoming.

Littleton, in effect, argues that we should modify FW/ PBS, withdrawing its implication that Freedman's special judicial review rules apply in this case. And we accept that argument. In our view, Colorado’s ordinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly. And whether the courts do so is a matter normally fit for case-by-case determination rather than a facial challenge. We reach this conclusion for several reasons.

First, ordinary court procedural rules and practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm. Indeed, where necessary, courts may arrange their schedules to “accelerate” proceedings. Colo. Rule Civ. Proc. 106(a)(4)(VIII) (2003). And higher courts may quickly review adverse lower court decisions. See, e. g., Goebel v. Colorado Dept. of Institutions, 764 P. 2d 785, 792 (Colo. 1988) (en banc) (granting “expedited review”).

Second, we have no reason to doubt the willingness of Colorado’s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm. We presume that courts are aware of the constitutional need to avoid “undue delay resulting] in the unconstitutional suppression of protected speech.” FW/PBS, supra, at 228; see also, e. g., Schlesinger v. Councilman, 420 U. S. 738, 756 (1975). There is no evidence before us of any special Colorado court-related problem in this respect. And were there some such problems, federal remedies would provide an additional safety valve. See Rev. Stat. § 1979, 42 U. S. C. § 1983.

Third, the typical First Amendment harm at issue here differs from that at issue in Freedman, diminishing the need in the typical case for special procedural rules imposing special 2- or 3-day decisionmaking time limits. Freedman considered a Maryland statute that created a Board of Censors, which had to decide whether a film was “‘pornographic,’” tended to “‘debase or corrupt morals,”’ and lacked “‘whatever other merits.’ ” 380 U. S., at 52-53, n. 2 (quoting Maryland statute). If so, it denied the permit and the film could not be shown. Thus, in Freedman, the Court considered a scheme with rather subjective standards and where a denial likely meant complete censorship.

In contrast, the ordinance at issue here does not seek to censor material. And its licensing scheme applies reasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials that an adult business may sell or display. The ordinance says that an adult business license “símil” be denied if the applicant (1) is underage; (2) provides false information; (3) has within the prior year had an adult business license revoked or suspended; (4) has operated an adult business determined to be a state law “public nuisance” within the prior year; (5) (if a corporation) is not authorized to do business in the State; (6) has not timely paid taxes, fees, fines, or penalties; (7) has not obtained a sales tax license (for which zoning compliance is required, see Tr. of Oral Arg. 16-17); or (8) has been convicted of certain crimes within the prior five years. § 3-14-8(A), App. to Brief for Petitioner 28a-29a (emphasis added).

These objective criteria are simple enough to apply and their application simple enough to review that their use is unlikely in practice to suppress totally the presence of any specific item of adult material in the Littleton community. Some license applicants will satisfy the criteria even if others do not; hence the community will likely contain outlets that sell protected adult material. A supplier of that material should be able to find outlets; a potential buyer should be able to find a seller. Nor should zoning requirements suppress that material, for a constitutional zoning system seeks to determine where, not whether, protected adult material pan be sold. See Renton v. Playtime Theatres, Inc., 475 U. S. 41, 46 (1986). The upshot is that Littleton’s “adult business” licensing scheme does “not present the grave ‘dangers of a censorship system.”’ FW/PBS, 493 U. S., at 228 (opinion of O’Connor, J.) (quoting Freedman, supra, at 58). And the simple objective nature of the licensing criteria means that in the ordinary case, judicial review, too, should prove simple, hence expeditious. Where that is not so— where, for example, censorship of material, as well as delay in opening an additional outlet, is improperly threatened— the courts are able to act to prevent that harm.

Fourth, nothing in FW/PBS or in Freedman requires a city or a State to place judicial review safeguards all in the city ordinance that sets forth a licensing scheme. Freedman itself said: “How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide.” 380 U. S., at 60. This statement is not surprising given the fact that many cities and towns lack the state-law legal authority to impose deadlines on state courts.

These four sets of considerations, taken together, indicate that Colorado’s ordinary rules of judicial review are adequate — at least for purposes of this facial challenge to the ordinance. Where (as here and as in FW/PBS) the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria, cf. post, at 785 (Stevens, J., concurring in part and concurring in judgment), and does not seek to censor content, an adult business is not entitled to an unusually speedy judicial decision of the Freedman type. Colorado’s rules provide for a flexible system of review in which judges can reach a decision promptly in the ordinary case, while using their judicial power to prevent significant harm to First Amendment interests where circumstances require. Of course, those denied licenses in the future remain free to raise special problems of undue delay in individual cases as the ordinance is applied.

For these reasons, the judgment of the Tenth Circuit is

Reversed.

Justice Stevens,

concurring in part and concurring in the judgment.

There is an important difference between an ordinance conditioning the operation of a business on compliance with certain neutral criteria, on the one hand, and an ordinance conditioning the exhibition of a motion picture on the consent of a censor. The former is an aspect of the routine operation of a municipal government. The latter is a species of content-based prior restraint. Cf. Graff v. Chicago, 9 F. 3d 1309, 1330-1333 (CA7 1993) (Flaum, J., concurring).

The First Amendment is, of course, implicated whenever a city requires a bookstore, a newsstand, a theater, or an adult business to obtain a license before it can begin to operate. For that reason, as Justice O’Connor explained in her plurality opinion in FW/PBS, Inc. v. Dallas, 493 U. S. 215, 226 (1990), a licensing scheme for businesses that engage in First Amendment activity must be accompanied by adequate procedural safeguards to avert “the possibility that constitutionally protected speech will be suppressed.” But Justice O’Connor’s opinion also recognized that the full complement of safeguards that are necessary in cases that “present the grave ‘dangers of a censorship system’” are “not required” in the ordinary adult-business licensing scheme. Id., at 228 (quoting Freedman v. Maryland, 380 U. S. 51, 58 (1965)). In both contexts, “undue delay results in the unconstitutional suppression of protected speech,” 493 U. S., at 228, and FW/PBS therefore requires both that the licensing decision be made promptly and that there be “the possibility of prompt judicial review in the event that the license is erroneously denied,” ibid. But application of neutral licensing criteria is a “ministerial action” that regulates speech, rather than an exercise of discretionary judgment that prohibits speech. Id., at 229. The decision to deny a license for failure to comply with these neutral criteria is therefore not subject to the presumption of invalidity that attaches to the “direct censorship of particular expressive material.” Ibid. Justice O’Connor’s opinion accordingly declined to require that the licensor, like the censor, either bear the burden of going to court to effect the denial of a license or otherwise assume responsibility for ensuring a prompt judicial determination of the validity of its decision. Ibid.

The Court today reinterprets FW/PBS’s references to ‘“the possibility of prompt judicial review’” as the equivalent of Freedman’s “ ‘prompt’ judicial decision” requirement. Ante, at 780-781. I fear that this misinterpretation of FW/ PBS may invite other, more serious misinterpretations with respect to the content of that requirement. As the Court applies it in this case, assurance of a “ ‘prompt’ judicial decision” means little more than assurance of the possibility of a prompt decision — the same possibility of promptness that is available whenever a person files suit subject to “ordinary court procedural rules and practices.” Ante, at 781-782. That possibility will generally be sufficient to guard against the risk of undue delay in obtaining a remedy for the erroneous application of neutral licensing criteria. But the mere possibility of promptness is emphatically insufficient to guard against the dangers of unjustified suppression of speech presented by a censorship system of the type at issue in Freedman, and is certainly not what Freedman meant by “ ‘prompt’ judicial decision.”

Justice O’Connor’s opinion in FW/PBS recognized that differences between ordinary licensing schemes and censorship systems warrant imposition of different procedural protections, including different requirements with respect to which party must assume the burden of taking the case to court, as well as the risk of judicial delay. I would adhere to the views there expressed, and thus do not join Part II-A of the Court’s opinion. I do, however, join the Court’s judgment and Parts I and II-B of its opinion.

Justice Souter,

with whom Justice Kennedy joins,

concurring in part and concurring in the judgment.

I join the Court’s opinion, except for Part II-B. I agree that this scheme is unlike full-blown censorship, ante, at 782-784, so that the ordinance does not need a strict timetable of the kind required by Freedman v. Maryland, 380 U. S. 51 (1965), to survive a facial challenge. I write separately to emphasize that the state procedures that make a prompt judicial determination possible need to align with a state judicial practice that provides a prompt disposition in the state courts. The emphasis matters, because although Littleton’s ordinance is not as suspect as censorship, neither is it as innocuous as common zoning. It is a licensing scheme triggered by the content of expressive materials to be sold. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 448 (2002) (Kennedy, J., concurring in judgment) (“These ordinances are content based, and we should call them so”); id., at 455-457 (Souter, J., dissenting). Because the sellers may be unpopular with local authorities, there is a risk of delay in the licensing and review process. If there is evidence of foot dragging, immediate judicial intervention will be required, and judicial oversight or review at any stage of the proceedings must be expeditious.

Justice Scalia,

concurring in the judgment.

Were the respondent engaged in activity protected by the First Amendment, I would agree with the Court’s disposition of the question presented by the facts of this case (though not with all of the Court’s reasoning). Such activity, when subjected to a general permit requirement unrelated to censorship of content, has no special claim to priority in the judicial process. The notion that media corporations have constitutional entitlement to accelerated judicial review of the denial of zoning variances is absurd.

I do not believe, however, that Z. J. Gifts is engaged in activity protected by the First Amendment. I adhere to the view I expressed in FW/PBS, Inc. v. Dallas, 493 U. S. 215, 250 (1990) (opinion concurring in part and dissenting in part): the pandering of sex is not protected by the First Amendment. “The Constitution does not require a State or municipality to permit a business that intentionally specializes in, and holds itself forth to the public as specializing in, performance or portrayal of sex acts, sexual organs in a state of arousal, or live human nudity.” Id., at 258. This represents the Nation’s long understanding of the First Amendment, recognized and adopted by this Court’s opinion in Ginzburg v. United States, 383 U. S. 463, 470-471 (1966). Littleton’s ordinance targets sex-pandering businesses, see Littleton City Code §3-14-2 (2003); to the extent it could apply to constitutionally protected expression its excess is not so great as to render it substantially overbroad and thus subject to facial invalidation, see FW/PBS, 493 U. S., at 261-262. Since the city of Littleton “could constitutionally have proscribed the commercial activities that it chose instead to license, I do not think the details of its licensing scheme had to comply with First Amendment standards.” Id., at 253.


text:
    March 8, 2004
    No. 03M49.
    Under Seal v. United States.
   Motion for leave to file petition for writ of certiorari under seal with redacted copies for the public record granted.


text:
    No. 8, Orig.
    Arizona v. California et al.
   Motion of Billy Wayne Andrews, Jr., for leave to intervene denied. [For earlier order herein, see, e. g., 540 U. S. 1216.]


text:
    No. 02-572.
    Intel Corp. v. Advanced Micro Devices, Inc.
   C. A. 9th Cir. [Certiorari granted, 540 U. S. 1003.] Motion of the Commission of the European Communities for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.

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


text:
    No. 02-1609.
    City of Littleton, Colorado v. Z. J. Gifts D-4, L. L. C., dba Christal’s.
   C. A. 10th Cir. [Certiorari granted, 540 U. S. 944.] Motion of petitioner for divided argument denied. Motion of Ohio et al. for leave to participate in oral argument as amici curiae and for divided argument granted.


text:
    No. 03-932.
    Dura Pharmaceuticals, Inc. v. Broudo et al.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 03-8150.
    No. 03-8253.
    Bielenberg et ux. v. Griffiths et al. Bitterman v. Hoffman et al.
   C. A. 7th Cir.; and Sup. Ct. Fla. Motions of petitioners for leave to proceed in 'forma pauperis denied. Petitioners are allowed until March 29, 2004, within which to pay the docketing fees required by Rule 38(a) and to submit petitions in compliance with Rule 33.1 of the Rules of this Court.


text:
    No. 03-8903.
    Reyna v. United States.
   C. A. 5th Cir. Motion of petitioner to expedite consideration of petition for writ of certiorari denied.


text:
    No. 03-974.
    No. 03-977.
    No. 03-1062.
    No. 03-8200.
    In re Kemp; In re Brown; In re Norman; and In re Lone Wolf, aka Horton.
   Petitions for writs of mandamus denied.


text:
    No. 02-11099.
    Alston v. Senkowski, Superintendent, Clinton Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 03-596.
    Goodine v. United States.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 03-816.
    Suwannee Swifty Stores, Inc. v. Georgia Lottery Corp.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 03-824.
    Naething v. Covington, Director, American General Life & Accident Insurance Co., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 03-933.
    Calderon, Governor of Puerto Rico, et al. v. Navarro-Ayala et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 03-939.
    Diaz et al. v. J. Ray McDermott, S. A., et al.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 03-941.
    Davis, fka Beveridge v. Jones et ux.
   Ct. App. Mich. Certiorari denied.


text:
    No. 03-943.
    Secured Environmental Management, Inc. v. Texas Commission on Environmental Quality et al.
   Ct. App. Tex., 3d Dist. Certiorari denied.


text:
    No. 03-944.
    American Gem Seafoods, Inc., et al. v. Wei Zhang.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-952.
    Brazauskas v. Fort Wayne-South Bend Diocese, Inc., et al.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 03-953.
    USX Corp. et al. v. Adriatic Insurance Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-954.
    Tierney et al. v. John Hancock Financial Services, Inc., et al.
   App. Ct. Mass. Certiorari denied.


text:
    No. 03-956.
    Boy Scouts of America et al. v. Wyman, in Her Capacity as Comptroller of the State of Connecticut and as a Member of the Connecticut State Employee Campaign Committee, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 03-957.
    Williams v. Warner, Governor of Virginia, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 03-964.
    Oakley v. Webster Bank et al.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 03-967.
    Kang v. Board of Supervisors of Louisiana State University et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-970.
    Schmitz v. M&M/Mars, a Division of Mars, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-971.
    Rodriguez v. HFP, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 03-983.
    Jones v. Norfolk Southern Railway Co.
   Ct. App. Ohio, Lucas County. Certiorari denied.


text:
    No. 03-991.
    Guilbeaux v. Grasso Production Management, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-994.
    Brown, in Her Capacity as Special Representative for Reeves, Deceased, et al. v. Stumpf et al., Cotrustees of S & S Land Trust, et al.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 03-1006.
    Gallagher v. Michigan.
   Cir. Ct. Macomb County, Mich. Certiorari denied.


text:
    No. 03-1013.
    Exxon Mobil Corp. et al. v. Norton, Secretary of the Interior, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 03-1019.
    Terry v. Principi, Secretary of Veterans Affairs.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 03-1026.
    Ramirez et al. v. Texas et al.
   Ct. App. Tex., 3d Dist. Certiorari denied.


text:
    No. 03-1103.
    Parker v. Department of Defense.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 03-1110.
    Johnson v. McCuskey, Judge, United States District Court for the Central District of Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-1117.
    Gupta v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 03-1126.
    Chase v. Department of Health and Human Services.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 03-1128.
    Porro et vir v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-1130.
    Collado v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 03-6462.
    Benitez-Torres v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-6724.
    No. 03-6798.
    No. 03-6831.
    No. 03-6958.
    No. 03-7305.
    Santana v. United States; Stevenson v. United States; Garvin v. United States; Hernandez et al. v. United States; and Diaz v. United States.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 03-7044.
    Gunn v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 03-7399.
    Kamae v. Hawaii.
   Sup. Ct. Haw. Certiorari denied.


text:
    No. 03-7506.
    Rockwell v. Yukins, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 03-7604.
    Clifford v. Chandler, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 03-7695.
    Nasirun v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 03-7782.
    Blackwell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-7793.
    Kelley v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-7797.
    Tate v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 03-7883.
    Taylor v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 03-7892.
    Rouse v. Lee, Warden.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 03-8111.
    Richman v. Fabiani.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8124.
    Robertson v. Casual Corner Group, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8131.
    Di Nardo et al. v. Circuit Court of Florida, Palm Beach County, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 03-8138.
    Coar v. MacFarland, Administrator, South Woods State Prison, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8139.
    Pellegrino v. United States District Court for the District of South Dakota.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 03-8140.
    McGowan v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 03-8141.
    Barton v. Brewer et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 03-8145.
    Simmons v. Caspari, Assistant Director, Missouri Board of Probation and Parole.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 03-8147.
    Sealey v. Pliler, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8152.
    Ross v. Circuit Court of West Virginia, Ka-nawah County.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 03-8153.
    Ruddock v. Mote, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-8154.
    Strauss v. Florida.
   Dist. Ct. App. Fla., 5th Dist. Certiorari denied.


text:
    No. 03-8155.
    Reid v. Oklahoma Pardon and Parole Board et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 03-8156.
    Spuck v. Meyers, Superintendent, State Correctional Institution at Rockview, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8165.
    Farrell v. Flanagan, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8168.
    Delval v. Giurbino, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8176.
    McMahan v. Bravo, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 03-8180.
    Brock v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 03-8187.
    McGraw v. Cain, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8189.
    Sells v. Wolfe, Warden.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 03-8191.
    Reed v. Yarborough, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8194.
    Wallace v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 03-8195.
    Musgrove v. DeTella, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-8196.
    Cooley v. Lamarque, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8198.
    Coombs v. Kelchner, Superintendent, State Correctional Institution at Camp Hill, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8199.
    Metoyer v. Addison, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 03-8205.
    Williams v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 03-8207.
    Johnson v. McCondichie, Superintendent, Southeast Correctional Center.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 03-8208.
    Lann v. United States District Court for the Southern District of Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8209.
    Flores Argumaniz v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8211.
    Bell v. Hall, Warden.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 03-8212.
    A. L. v. A. J.
   Super. Ct. N. J., App. Div. Certio-rari denied.


text:
    No. 03-8214.
    Martin v. Bobby, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 03-8215.
    Asmussen v. South Dakota.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 03-8221.
    Ealoms v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8227.
    Young v. Garcia, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8231.
    Voits v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 03-8232.
    Barton v. Airgood.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 03-8238.
    Calhoun v. Hargrove et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8240.
    Doner v. City of Rockford, Illinois.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-8242.
    Campbell v. Garcia, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8243.
    Cobbs v. Duncan, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8244.
    Crompton v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 03-8245.
    Campfield v. Stickman, Superintendent, State Correctional Institution at Greene, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8251.
    Wilson v. Mote, Warden.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 03-8256.
    Reynolds v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 03-8259.
    No. 03-8262.
    Baldasaro v. California; and Baugh v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 03-8273.
    Cruz v. Hendricks, Administrator, New Jersey State Prison, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8290.
    Dunyan v. Colleran, Superintendent, State Correctional Institution at Waymart, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8295.
    Chatman v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 03-8300.
    Stevens v. Michigan.
   Ct. App. Mich. Certio-rari denied.


text:
    No. 03-8303.
    Harris v. Hamlet, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8316.
    Weldon v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 03-8329.
    Sanders v. Kyler, Superintendent, State Correctional Institution at Huntingdon, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 03-8332.
    Roberson v. Lopez, Sheriff, Bexar County, Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8351.
    Powell v. Mullin, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 03-8355.
    Burnett v. Giurbino, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8396.
    Shegog v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 03-8406.
    Sullivan v. Environmental Protection Agency.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 03-8408.
    Wolfe v. Norfolk Southern Railway Co.
    C. A. 6th Cir.
   Certiorari denied.

Appx. 532.


text:
    No. 03-8423.
    Smith v. Washington.
   Sup. Ct. Wash. Certio-rari denied.


text:
    No. 03-8431.
    Taylor v. Morgan, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 03-8448.
    Von Brock v. Wilson, Superintendent, Mississippi State Penitentiary.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 03-8473.
    Shipps v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 03-8475.
    Roberts v. Giurbino, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 03-8498.
    Lord v. Sternes, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-8509.
    Wiggins, aka Carruth v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 03-8519.
    Smith v. Ozmint, Director, South Carolina Department of Corrections, et al.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 03-8520.
    Rozenblat v. Sandia Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-8521.
    Bryant v. Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 03-8528.
    Santiago v. McAdory, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 03-8533.
    Heard v. California.
   Sup. Ct. Cal. Certio-rari denied.


text:
    No. 03-8543.
    Hurbenca v. Nebraska.
   Sup. Ct. Neb. Cer-tiorari denied.


text:
    No. 03-8568.
    Kimbrough v. Texas.
   Ct. App. Tex., 2d Dist. Certiorari denied.


text:
    No. 03-8571.
    Porter v. Kansas.
   Sup. Ct. Kan. Certiorari denied.