source: Caselaw Access Project

author: Justice Scalia Justice Stevens,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. KENTUCKY RIVER COMMUNITY CARE, INC., et al.
    No. 99-1815.
    Argued February 21, 2001
    Decided May 29, 2001

      Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were former Solicitor General Waxman, Matthew D. Roberts, Leonard R. Page, John H. Ferguson, Norton J. Come, and John Emad Arbab. Thomas J. Schulz, Jonathan P. Hiatt, James B. Coppess, and
      Laurence Gold filed briefs for Kentucky State District Council of Carpenters as respondent under this Court’s Rule 12.6 in support of petitioner.

      Michael W. Hawkins argued the cause for respondent Kentucky River Community Care, Inc. With him on the brief were Louise S. Brock and Cheryl E. Bruner.

      Briefs of amici curiae urging reversal were filed for the American Nurses Association by Barbara J. Sapin and Woody N. Peterson; and for the Service Employees International Union et al. by Judith A Scott, Diana 0. Ceresi, Robert E. Funk, Jr., David J. Strom, Jack Dempsey, and Larry Weinberg.

      Briefs of amici curiae urging affirmance were filed for the American Health Care Association by Thomas V. Walsh and Thomas P. McDonough; and for Human Resource Management et al. by G. Roger King.

   Justice Scalia

delivered the opinion of the Court.

Under the National Labor Relations Act, employees are deemed to be “supervisors” and thereby excluded from the protections of the Act if, inter alia, they exercise “independent judgment” in “responsibly . . . direet[ing]” other employees “in the interest of the employer.” 29 U. S. C. §152(11). This ease presents two questions: which party in an unfair-labor-practiee proceeding bears the burden of proving or disproving an employee’s supervisory status; and whether judgment is not “independent judgment” to the extent that it is informed by professional or technical training or experience.

I

In Pippa Passes, Kentucky, respondent Kentucky River Community Care, Inc., operates a care facility for residents who suffer from mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employs approximately 110 professional and nonprofessional employees in addition to roughly a dozen coneededly managerial or supervisory employees. In 1997, the Kentucky State District Council of Carpenters (a labor union that is co-respondent here, supporting petitioner) petitioned the National Labor Relations Board to represent a single unit of all 110 potentially eligible employees at Caney Creek. See National Labor Relations Act (Act) §9(c), 49 Stat. 453, 29 U. S. C. § 159(c).

At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were “supervisors” under §2(11) of the Act, 29 U. S. C. §152(11), and therefore excluded from the class of “employees” subject to the Act’s protection and includable in the bargaining unit. See §2(3), 29 U.S.C. §152(3). The Board’s Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see § 3(b), 29 U. S. C. § 153(b); 29 CFR §101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See § 9(c)(1), 29 U. S. C. § 159(c)(1). The Board denied respondent’s request for review of the Regional Director’s decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees.

Because direct judicial review of representation determinations is unavailable, AFL v. NLRB, 308 U.S. 401, 409-411 (1940), respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§ 8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§ 158(a)(1), (5). The Board granted summary judgment to the General Counsel pursuant to regulations providing that, absent newly developed evidence, the propriety of a bargaining unit may not be relitigated in an unfair labor practice hearing predicated on a challenge to the representation determination. 29 CFR § 102.67(f) (2000); see Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139-141 (1971) (approving that practice); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161-162 (1941) (same).

Respondent petitioned for review of the Board’s decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned. The Sixth Circuit granted respondent’s petition as it applied to the nurses and refused to enforce the bargaining order. It held that the Board had erred in placing the burden of proving supervisory status on respondent rather than on its General Counsel, and it rejected the Board’s interpretation of “independent judgment,” explaining that the Board had erred by classifying “the practice of a nurse supervising a nurse’s aide in administering patient care” as “‘routine’ [simply] because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with ‘management.’ ” 193 F. 3d 444, 453 (1999). We granted the Board’s petition for a writ of certiorari. 530 U. S. 1304 (2000).

II

The Act expressly defines the term “supervisor” in §2(11), which provides:

“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U. S. C. § 152(11).

The Act does not, however, expressly allocate the burden of proving or disproving a challenged employee’s supervisory status. The Board therefore has filled the statutory gap with the consistent rule that the burden is borne by the party claiming that the employee is a supervisor. For example, when the General Counsel seeks to attribute the conduct of certain employees to the employer by virtue of their supervisory status, this rule dictates that he bear the burden of proving supervisory status. See, e. g., Masterform Tool Co., 327 N. L. R. B. 1071, 1071-1072 (1999). Or, when a union challenges certain ballots cast in a representation election on the basis that they were cast by supervisors, the union bears the burden. See, e. g., Panaro and Grimes, 321 N. L. R. B. 811, 812 (1996).

The Board argues that the Court of Appeals for the Sixth Circuit erred in not deferring to its resolution of the statutory ambiguity, and we agree. The Board’s rule is supported by “the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.” FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). The Act’s definition of “employee,” §2(3), 29 U. S. C. §152(3), “reiterate[s] the breadth of the ordinary dictionary definition” of that term, so that it includes “any 'person who works for another in return for financial or other compensation.’” NLRB v. Town & Country Elec., Inc., 516 U.S. 85,90 (1995) (quoting American Heritage Dictionary 604 (3d ed. 1992)). Supervisors would fall within the class of employees, were they not expressly excepted from it. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984); cf. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). The burden of proving the applicability of the supervisory exception, under Morton Salt, should thus fall on the party asserting it. In addition, it is easier to prove an employee’s authority to exercise 1 of the 12 listed supervisory functions than to disprove an employee’s authority to exercise any of those functions, and practicality therefore favors placing the burden on the party asserting supervisory status. We find that the Board’s rule for allocating the burden of proof is reásonable and consistent with the Act, and we therefore defer to it. NLRB v. Transportation Management Corp., 462 U. S. 393,402-403 (1983).

Applying its rule to this ease, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the §9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the § 8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, “the General Counsel carries the burden of proving the elements of an unfair labor practice,” id., at 401, which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U. S. C. § 556(d); Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-278 (1994) (rejecting statement to contrary in NLRB v. Transportation Management Corp., supra, at 404, n. 7). Supervisory status, however, is not an element of the Board’s claim in this setting. The Board must prove that the employer refused to bargain with the representative of a unit of “employees,” § 8(a)(5), 29 U. S. C. § 158(a)(5), that was properly certified; the unit was not properly certified (as the respondent contends) only if the respondent successfully demonstrated, at the certification stage, that some employees in the unit were also supervisors. In the unfair labor practice proceeding, therefore, the burden remains on the employer to establish the excepted status of these nurses. Insofar as the Court of Appeals held otherwise, it erred. It remains to consider whether the court’s other holding that is challenged here suffices to sustain its judgment.

í — 1 t

The text of §2(11) of the Act that we quoted above, 29 U. S. C. § 152(11), sets forth a three-part test for deter-milling supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.” NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573-574 (1994). The only basis asserted by the Board, before the Court of Appeals and here, for rejecting respondent’s proof of supervisory status with respect to directing patient care was the Board’s interpretation of the second part of the test — to wit, that employees do not use “independent judgment” when they exercise “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.” Brief for Petitioner 11. The Court of Appeals rejected that interpretation, and so do we.

Two aspects of the Board’s interpretation are reasonable, and hence controlling on this Court, see NLRB v. Town & Country Elec., Inc., supra, at 89-90; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). First, it is certainly true that the statutory term “independent judgment” is ambiguous with respect to the degree of discretion required for supervisory status. See NLRB v. Health Care & Retirement Corp. of America, supra, at 579. Many nominally supervisory functions may be performed without the “exereis[e of] such a degree of... judgment or discretion ... as would warrant a finding” of supervisory status under the Act. Weyerhaeuser Timber Co., 85 N. L. R. B. 1170, 1173 (1949). It falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies. Second, as reflected in the Board’s phrase “in accordance with employer-speeified standards,” it is also undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer. So, for example, in Chevron Shipping Co., 317 N. L. R. B. 379, 381 (1995), the Board concluded that “although the contested licensed officers are imbued with a great deal of responsibility, their use of independent judgment and discretion is circumscribed by the master’s standing orders, and the Operating Regulations, which require the watch officer to contact a superior officer when anything unusual occurs or when problems occur.”

The Board, however, argues further that the judgment even of employees who are permitted by their employer to exercise a sufficient degree of discretion is not “independent judgment” if it is a particular kind of judgment, namely, “ordinary professional or technical judgment in directing less-skilled employees to deliver services.” Brief for Petitioner 11. The first five words of this interpretation insert a startling categorical exclusion into statutory text that does not suggest its existence. The text, by focusing on the “clerical” or “routine” (as opposed to “independent”) nature of the judgment, introduces the question of degree of judgment that we have agreed falls -within the reasonable discretion of the Board to resolve. But the Board’s categorical exclusion turns on factors that have nothing to do with the degree of discretion an employee exercises. Cf. Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 481 (2001) (“[T]he agency’s interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear”). Let the judgment be significant and only loosely constrained by the employer; if it is “professional or technical” it will nonetheless not be independent. The breadth of this exclusion is made all the more startling by virtue of the Board’s extension of it to judgment based on greater “experience” as well as formal training. See Reply Brief for Petitioner 3 (“professional or technical skill or experience”). What’supervisory judgment worth exercising, one must wonder, does not rest on “professional or technical skill or experience”? If the Board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate “supervisors” from the Act. Cf. NLRB v. Yeshiva Univ., 444 U.S. 672, 687 (1980) (Excluding “decisions . . . based on . . . professional expertise” would risk “the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities”).

As it happens, though, only one class of supervisors would be eliminated in practice, because the Board limits its categorical exclusion with a qualifier: Only professional judgment that is applied “in directing less-skilled employees to deliver services” is excluded from the statutory category of “independent judgment.” Brief for Petitioner 11. This second rule is no less striking than the first, and is directly contrary to the text of the statute. Every supervisory function listed by the Act is accompanied by the statutory requirement that its exercise “requir[e] the use of independent judgment” before supervisory status will obtain, §152(11), but the Board would apply its restriction upon “independent judgment” to just 1 of the 12 listed functions: “responsibly to direct.” There is no apparent textual justification for this asymmetrical limitation, and the Board has offered none. Surely no conceptual justification can be found in the proposition that supervisors exercise professional, technical, or experienced judgment only when they direct other employees. Decisions “to hire,... suspend, lay off, recall, promote, discharge, ... or discipline” other employees, ibid., must often depend upon that same judgment, which enables assessment of the employee’s proficiency in performing his job. See NLRB v. Yeshiva Univ., supra, at 686 (“[M]ost professionals in managerial positions continue to draw on their special skills and training”). Yet in no opinion that we were able to discover has the Board held that a supervisor’s judgment in hiring, disciplining, or promoting another employee ceased to be “independent judgment” because it depended upon the supervisor’s professional or technical training or experience. When an employee exercises one of these functions with judgment that possesses a sufficient degree of independence, the Board invariably finds supervisory status. See, e. g., Trustees of Noble Hospital, 218 N. L. R. B. 1441, 1442 (1975).

The Board’s refusal to apply its limiting interpretation of “independent judgment” to any supervisory function other than responsibly directing other employees is particularly troubling because just seven years ago we rejected the Board’s interpretation of part three of the supervisory test that similarly was applied only to the same supervisory function. See NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571 (1994). In Health Care, the Board argued that nurses did not exercise their authority “in the interest of the employer,” as §152(11) requires, when their “independent judgment [was] exercised incidental to professional or technical judgment” instead of for “disciplinary or other matters, i. e., in addition to treatment of patients.” Northcrest Nursing Home, 313 N. L. R. B. 491, 505 (1993). It did not escape our notice that the target of this analysis was the supervisory function of responsible direction. “Under §2(11),” we noted, “an employee who in the course of employment uses independent judgment to engage in 1 of the 12 listed activities, including responsible direction of other employees, is a supervisor. Under the Board’s test, however, a nurse who in the course of employment uses independent judgment to engage in responsible direction of other employees is not a supervisor.” 511 U.S., at 578-579. We therefore rejected the Board’s analysis as “inconsistent with ... the statutory language,” because it “rea[d] the responsible direction portion of §2(11) out of the statute in nurse cases.” Id., at 579-580. It is impossible to avoid the conclusion that the Board’s interpretation of “independent judgment,” applied to nurses for the first time after our decision in Health Care, has precisely the same object. This interpretation of “independent judgment” is no less strained than the interpretation of “in the interest of the employer” that it has succeeded. Cf. Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374 (1998) (an agency that announces one principle but applies another is not acting rationally under the Act).

The Board contends, however, that Congress incorporated the Board’s categorical restrictions on “independent judgment” when it first added the term “supervisor” to the Act in 1947. We think history shows the opposite. The Act as originally passed by Congress in 1935 did not mention supervisors directly. It extended to “employees” the “right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing . . . .” Act of July 5, 1935, § 7, 49 Stat. 452, and it defined “employee” expansively (if circularly) to “include any employee,” §2(3). We therefore held that supervisors were protected by the Act. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). Congress in response added to the Act the exemption we had found lacking. The Labor Management Relations Act, 1947 (Taft-Hartley Act) expressly excluded “supervisors” from the definition of “employees” and thereby from the protections of the Act. § 2(3), 61 Stat. 137, as amended, 29 U. S. C. § 152(3) (“The term ‘employee’... shall not include ... any individual employed as a supervisor”); Taft-Hartley Act § 14(a), as amended, 29 U. S. C. § 164(a) (“[N]o employer [covered by the Act] shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining”).

Well before the Taft-Hartley Act added the term “supervisor” to the Act, however, the Board had already been defining it, because while the Board agreed that supervisors were protected by the 1935 Act, it also determined that they should not be placed in the same bargaining unit as the employees they oversaw. To distinguish the two groups, the Board defined “supervisors” as employees who “supervise or direct the work of [other] employees . . . , and who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of such employees.” Douglas Aircraft Co., 50 N. L. R. B. 784, 787 (1943) (emphasis added). The “and” bears emphasis because it was a true conjunctive: The Board consistently held that employees whose only supervisory function was directing the work of other employees were not “supervisors” within its test. For example, in Bunting Brass & Bronze Co., 58 N. L. R. B. 618, 620 (1944), the Board wrote: “We are of the opinion that, while linemen do direct the work of [other] employees, they do not exercise substantial supervisory authority within the usual meaning of that term.” See also, e. g., Duval Texas Sulphur Co., 53 N. L. R. B. 1387, 1390-1391 (1943) (“As to the chief electrician, motor mechanic, plant engineers, and drillers,... [t)he fact that they work with helpers, and perforce direct and guide the work of their helpers, does not, of itself, elevate them to such supervisory rank that they must be excluded from the broad production and maintenance unit”).

When the Taft-Hartley Act added the term “supervisor” to the Act in 1947, it largely borrowed the Board’s definition of the term, with one notable exception: Whereas the Board required a supervisor to direct the work of other employees and perform another listed function, the Act permitted direction alone to suffice. “The term ‘supervisor’ means any individual having authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances.” Taft-Hartley Act §2(11), as amended, 29 U. S. C. § 152(11) (emphasis added). Moreover, the Act assuredly did not incorporate the Board’s current interpretation of the term “independent judgment” as applied to the function of responsible direction, since the Board had not yet developed that interpretation. It had had no reason to do so, because it had limited the category of supervisors more directly, by requiring functions in addition to responsible direction. It is the Act’s alteration of precisely that aspect of the Board’s jurisprudence that has pushed the Board into a running struggle to limit the impact of “responsibly to direct” on the number of employees qualifying for supervisory status — presumably driven by the policy concern that otherwise the proper balance of labor-management power will be disrupted.

It is upon that policy concern that the Board ultimately rests its defense of its interpretation of “independent judgment.” In arguments that parallel those expressed by the dissent in Health Care, see 511 U.S., at 588-590 (Ginsburg, J., dissenting), and which are adopted by Justice Stevens in this ease, see post, at 726-727, the Board contends that its interpretation is necessary to preserve the inclusion of “professional employees” within the coverage of the Act. See §2(12), 29 U. S. C. § 152(12). Professional employees by definition engage in work “involving the consistent exercise of discretion and judgment.” § 152(12)(a)(ii). Therefore, the Board argues (enlisting dictum from our decision in NLRB v. Yeshiva Univ., 444 U.S., at 690, and n. 30, that was rejected in Health Care, see 511 U.S., at 581-582), if judgment of that sort makes one a supervisor under § 152(11), then Congress’s intent to include professionals in the Act will be frustrated, because “many professional employees (such as lawyers, doctors, and nurses) customarily give judgment-based direction to the less-skilled employees with whom they work,” Brief for Petitioner 33. The problem with the argument is not the soundness of its labor policy (the Board is entitled to judge that without our constant second-guessing, see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990)). It is that the policy cannot be given effect through this statutory text. See Health Care, supra, at 581 (“[Tjhere may be ‘some tension between the Act’s exclusion of [supervisory and] managerial employees and its inclusion of professionals,’ but we find no authority for ‘suggesting that that tension can be resolved’ by distorting the statutory language in the manner proposed by the Board”) (quoting NLRB v. Yeshiva Univ., supra, at 686). Perhaps the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others’ performance of discrete tasks from employees who direct other employees, as § 152(11) requires. Certain of the Board’s decisions appear to have drawn that distinction in the past, see, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996). We have no occasion to consider it here, however, because the Board has carefully insisted that the proper interpretation of “responsibly to direct” is not at issue in this case, see Brief for Petitioner 21-22, n. 9; Reply Brief for Petitioner 7-8, n. 6.

What is at issue is the Board’s contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, “independent judgment,” that naturally includes them. And further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees. 511 U.S., at 581. We therefore find the Board’s interpretation unlawful. See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S., at 364 (“Courts must defer to the requirements imposed by the Board if they are .‘rational and consistent with the Act,’ and if the Board’s ‘explication is not inadequate, irrational or arbitrary”’ (citations omitted)).

* * *

We may not enforce the Board’s order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U.S. 267, 289-290 (1974); SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943), and, as we noted above, supra, at 713, the Board has not asked us to do so. Hence, the Board’s error in interpreting “independent judgment” precludes us from enforcing its order. Our decision in Health Care, where the Board similarly had not asserted that its decision was correct on grounds apart from the one we rejected, see 511 U.S., at 584, simply affirmed the judgment of the Court of Appeals denying enforcement. Since that same condition applies here, see Brief for Petitioner 14, 42, and since neither party has suggested that Health Care's method for determining the propriety of a remand should not apply here, we take the same course. “Our conclusion that the Court of Appeals was correct to find the Board’s test inconsistent with the statute ... suffices to resolve the case.” Health Care, supra, at 584. The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join,

concurring in part and dissenting in part.

In my opinion, the National Labor Relations Board correctly found that respondent, Kentucky River Community Care, Inc., failed to prove that the six registered nurses employed at its facility in Pippa Passes, Kentucky, are “supervisors” within the meaning of the National Labor Relations Act. While we are unanimous in holding that the Court of Appeals set aside that finding based upon an incorrect allocation of the burden of proof, we disagree as to whether the Court of Appeals correctly concluded that the Board misinterpreted the provision of the NLRA excluding supervisors from the Act’s coverage. Moreover, even if I agreed with the majority’s view that the Board’s interpretation was error, that error would not justify affirming the erroneous decision of the Court of Appeals.

I

In the proceedings before the Board, respondent relied heavily on the fact that two registered nurses (RNs) served as “building supervisors” on weekends, and on the second and third shifts,. However, as the Regional Director who considered the evidence noted, the RNs received no extra compensation for serving as building supervisors and did not have keys to the facility. Instead, the only additional responsibility shouldered by the RNs when serving as building supervisors was that of contacting other employees if a shift was not fully staffed according to preestablished ratios not set by the RNs. However, the RNs had no authority to compel an employee to stay on duty or to come to work to fill a vacancy under threat of discipline.

With respect to the RNs’ regular duties, while they might “occasionally request other employees to perform routine tasks,” they had no “authority to take any action if the employee refuse[d] their directives.” App. to Pet. for Cert. 51a. In their routine work, they had no “authority to hire, fire, reward, promote or independently discipline employees or to effectively recommend such action. They did not evaluate employees or take any action which would affect their employment status.” Id., at 52a. Indeed, the RNs, even when serving as “building supervisors,” for the most part “work[ed] independently and by themselves without any subordinates.” Ibid.

Based on his evaluation of the evidence, the NLRB’s Regional Director applied “the same test to registered nurses as is applicable to all other individuals in determining supervisory status.” Ibid. Under that test, he concluded that “only supervisory personnel vested with ‘genuine management prerogatives’ should be considered supervisors, and not ‘straw bosses, leadmen, set-up men and other minor supervisory employees.’” Id., at 53a (quoting Chicago Metallic Corp., 273 N. L. R. B. 1677, 1688 (1985)). He did, however, exclude from the bargaining unit 10 specific supervisors including the nursing coordinator. App. to Pet. for Cert. 54a.

Over the dissent of Judge Jones, the Court of Appeals set aside the Board’s order. The panel majority first criticized the Board for ignoring its “repeated admonition” that the NLRB “ ‘has the burden of proving that employees are not supervisors.’” Id., at 15a. After acknowledging that “whether an employee is a supervisor is a highly fact-intensive inquiry,” that majority concluded that the RNs’ duties as building supervisors involved “independent judgment which is not limited to, or inherent in, the professional training of nurses.” Id., at 16a-19a. The panel majority also criticized the NLRB for interpreting the admittedly ambiguous statutory term “independent judgment” inconsistently with Sixth Circuit precedent.

II

Although it is not necessary to do so to overturn the Court of Appeals’ decision, the NLRB has asked us to reject the Sixth Circuit’s interpretation of the term “independent judgment.” In contrast to the Sixth Circuit, the NLRB interprets the term “independent judgment” as not including the exercise of ordinary professional or. technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards. Provi dence Hospital, 320 N. L. R. B. 717 (1996), enforced, 121 F. 3d 548 (CA9 1997); Nymed, Inc., 320 N. L. R. B. 806 (1996); see also, ,e. g., Graphics Typography, Inc., 217 N. L. R. B. 1047, 1053 (1975), enforced mem., 547 F. 2d 1162 (CA3 1976). The Board’s interpretation is a familiar one, which has been routinely applied in other employment contexts. See Providence, 320 N.L. R. B., at 717; Graphics Typography, 217 N. L. R. B., at 1053. Applying that interpretation, the NLRB has concluded that in some cases the employees in question are supervisors, and that in others they are not. See Brief for Petitioner 17-19, nn. 5-7 (collecting cases); see also Brief for Respondent Kentucky State District Council of Carpenters 36, n. 16 (collecting cases).

The question before us is whether the Board’s interpretation is both "rational and consistent with the Act.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 796 (1990); see Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987). To my mind, the Board’s test is both fully rational and entirely consistent with the Act.

The term “independent judgment” is indisputably ambiguous, and it is settled law that the NLRB’s interpretation of ambiguous language in the National Labor Relations Act is entitled to deference. See NLRB v. Health Care and Retirement Corporation, 511 U.S. 571, 579 (1994) (HCR); Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 787-788 (1996); Curtin Matheson Scientific, Inc., 494 U.S., at 786-787. Such deference is particularly appropriate when the statutory ambiguity is compounded by the use of one ambiguous term — ‘independent judgment” — to modify another, equally ambiguous term — namely, “responsibly to direct.”

Moreover, since Congress has expressly provided that professional employees are entitled to the protection of the Act, there is good reason to resolve the ambiguities consistently with the Board’s interpretation. At the same time that Congress acted to exclude supervisors from the NLRA’s protection, it explicitly extended those same protections to professionals, who, by definition, engage in work that involves “the consistent exercise of discretion and judgment in its performance.” 29 U. S. C. § 152(12)(a)(ii). As this Court has acknowledged, the inclusion of professional employees and the exclusion of supervisors necessarily gives rise to some tension in the statutory text. Cf. NLRB v. Yeshiva Univ., 444 U.S. 672, 686 (1980). Accordingly, if the term “supervisor” is construed too broadly, without regard for the statutory context, then Congress’ inclusion of professionals within the Act’s protections is effectively nullified. See HCB, 511 U.S., at 585 (Ginsburg, J., dissenting). In my opinion, the Court’s approach does precisely what it accuses the Board of doing — namely, reading one part of the statute to the exclusion of the other.

The Court acknowledges today that deference is appropriate when the Board determines both the degree of discretion required for supervisory status as well as the significance of limitations on the alleged supervisor’s discretion imposed by the employer. Thus, in a case like this, a court should not second-guess the Board’s evaluation of the authority of the nurses as building supervisors, or of the significance of the employer’s definition of that authority.

However, in a tour deforce supported by little more than ipse dixit, the Court concludes that no deference is due the Board’s evaluation of the “kind of judgment” that professional employees exercise. Ante, at 714 (emphasis deleted). Thus, under the Court’s view, it is impermissible for the Board to attach a different weight to a nurse’s judgment that an employee should be reassigned or disciplined than to a nurse’s judgment that the employee should take a patient’s temperature, even if nurses routinely instruct others to take a patient’s temperature but do not ordinarily reassign or discipline employees. The Court’s approach finds no support in the text of the statute, and is inconsistent with our case law. See, e. g., Yeshiva, 444 U.S., at 690 (“Only if an employee’s activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management”).

The Court further argues that the Board errs by not applying its limiting interpretation of the term “independent judgment” to all 12 functions identified by the statute as supervisory in nature. Ante, at 715-716. But of those 12, it is only “responsibly to direct” that is ambiguous and thus capable of swallowing the whole if not narrowly construed. The authority to “promote” or to “discharge,” to use only two examples, is specific and readily identifiable. In contrast, the authority “responsibly to direct” is far more vague. Thus, it is only logical for the term “independent judgment” to take on different contours depending on the nature of the supervisory function at issue and its comparative ambiguity.

Simply put, these are quintessential examples of terms that the expert agency should be allowed to interpret in the light of the policies animating the statute. See, e. g., Curtin Matheson, 494 U.S., at 786; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Because the Board’s interpretation is fully consistent both with the statutory text and with the policy favoring collective bargaining by professional employees, this Court is obligated to uphold it.

Ill

Even if I shared the majority’s view that the term “independent judgment” should be given the same meaning when applied to each of the 12 supervisory functions and when applied to professional and nonprofessional employees, I would not simply affirm the judgment of the Court of Appeals. Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 289-290 (1974); SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943). The Court’s rejection of the Board’s interpretation of the term “independent judgment” does not justify a categorical affirmance of the Sixth Circuit’s decision, which rests in part on an erroneous allocation of the burden of proof.

In any case, I do not agree with the majority’s view. Given the Regional Director’s findings that the RNs’ duties as building supervisors do not qualify them as “supervisors” within the meaning of 29 U. S. C. § 152(11), and that they, “ ‘for the most part, work independently and by themselves without any subordinates,’” it is absolutely clear that the nurses in question are covered by the NLRA. 193 F. 3d 444,457 (CA6 1999). The Court’s willingness to treat them as supervisors even if they have no subordinates is particularly ironic when compared to the Board’s undisturbed decision to deny supervisory status to the other group of professionals employed by respondent — namely, the 20 rehabilitation counselors who supervise the work of 40 rehabilitation assistants.

Accordingly, while I join Part II of the Court's opinion, I respectfully dissent from its holding. I would reverse the judgment of the Court of Appeals.

       The Board in its reply brief in this Court steps back from this interpretation and argues that it has only drawn distinctions between degrees of authority. Reply Brief for Petitioner 3. But the opinions of the Board that developed its current interpretation of “independent judgment” clearly draw a categorical distinction. See, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996) (“Section 2(11) supervisory authority does not include the authority of an employee to direct another to perform discrete tasks stemming from the directing employee’s experience, skills, training, or position”). It is those opinions that were cited in the Regional Director’s opinion resolving the representation dispute, see App. to Pet. for Cert. 52a-53a, which was accepted without further review by the Board and was unreviewable in the unfair labor practice proceeding. “We do not, of course, substitute counsel’s post hoe rationale for the reasoning supplied by the Board itself” NLRB v. Yeshiva Univ., 444 U.S. 672, 685, n. 22 (1980) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

       Justice Stevens argues in this ease, see post, at 725-726 (opinion concurring in part and dissenting in part), as the Board argued in NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 579 (1994), that the strain is eased by the ambiguity of a different term in the statute, “responsibly to direct.” That argument is no more persuasive now than when we rejected it in Health Care: “(A]mbiguity in one portion of a statute does not give the Board license to distort other provisions of the statute,” ibid.

       Our decision in Health Care cannot be distinguished, as Justice Stevens suggests, see post, at 729, n. 10, on the ground that there we found that the Court of Appeals had not erred in any respect. The basis for remand to an agency is the agency’s error on a point of law, not the reviewing court's. (That the reviewing court erred is irrelevant in light of "the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct ‘although the lower court relied upon a wrong ground or gave a wrong reason,”' SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (quoting Helvering v. Gowran, 302 U.S. 238, 245 (1937)).) And in Health Care, as here, the Board erred in interpreting the test for supervisory status.

       The RNs did have the authority to file “incident reports, but so [could] any other employee.” App. to Pet. for Cert. 51a.

       “According to NLRB interpretations, the practice of a nurse supervising a nurse’s aide in administering patient care, for example, does not involve ‘independent judgment.’ The NLRB classifies these activities as ‘routine’ because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with‘management.’” Id., at 17a.

       Oddly, the majority in this Court omits one element — namely, “‘in accordance with employer-specified standards.’ ” Ante, at 715-716. In so doing, it ignores a key nuance in the NLRB’s position. That, however, is characteristic of the majority’s treatment of the NLRB’s position, which is at once more fact specific and far less categorical than the majority makes it out to be.

       The majority, however, pays scant heed to the adjudicative record when it asserts that the Board’s interpretation would in essence eliminate the supervisory exception with respect to the “responsibly to direct” function. See ante, at 714-715.

       “[I]n many . . . contexts of labor policy, ‘[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’” Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 (1978) (quoting NLRB v. Truck Drivers, 353. U.S. 87, 96 (1957)).

       The majority suggests that the Board’s interpretation of the term “independent judgment” is particularly problematic in light of this Court’s decision in NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994) (HCR). But in HCR, this Court concluded that the terms “independent judgment” and “responsibly to direct” were ambiguous, while the term at issue in that ease, “in the interest of the employer,” was not. Id., at 579.

       As the American Nurses Association points out in its amicus brief, the scope of nursing practice routinely involves the exercise of judgment and the supervision of others. Brief for American Nurses Association as Amicus Curiae 2-6.

       Moreover, so broad a reading seems contrary to congressional intent in enacting the supervisory exception. Rather, the definition of "supervisor” was intended to apply only to those employees with “genuine management prerogatives” so that those employees excluded from the Act's coverage would be “truly supervisory.” S. Rep. No. 105, 80th Cong., 1st Sess., pp. 4,19 (1947), 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, pp. 410, 425 (1948).

       In fact, in Yeshiva, 444 U.S., at 690, this Court concluded that the NLRB’s decisions adopting such an approach “accurately eapture[d] the intent of Congress.”

       Even under the Court’s approach, since the NLRB might well prevail under the correct allocation of the burden of proof, the appropriate course of action in this ease would be to return the case to the NLRB for further proceedings. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974); see also Electrical Workers v. NLRB, 366 U.S. 667 (1961); Ford Motor Co. v. NLRB, 305 U.S. 364 (1939). NCR, on which the majority relies, see ante, at 721-722, is not to the contrary. In that case, unlike in this one, we found no error in the lower court’s decision. Here, however, the lower court erred in its allocation of the burden of proof, a fact which would seem to make a remand to the NLRB in order to apply what the majority deems to be the correct legal principle particularly appropriate.

       Nor do the RNs exercise any of the other supervisorial functions listed in §152(11). They play no role in assigning staff to shifts on a permanent basis or in setting the staff-to-resident ratio. App. 18-19, 23-24. As noted above, the RNs, whether functioning in their ordinary capacity or as “building supervisors,” do not have authority to hire, fire, reward, promote, or independently discipline employees, or to effectively recommend such action. Nor, for that matter, do they evaluate employees or take action that would affect their employment status.

       Neither the licensed practical nurses nor the rehabilitation assistants report to the RNs. Id., at 30,34,45,61.


author: Justice Souter

text:
    BOOTH v. CHURNER et al.
    No. 99-1964.
    Argued March 20, 2001
    Decided May 29, 2001

      Nancy Wirikelman argued the cause for petitioner. With her on the briefs were Joseph T. Lukens and Ralph N. Sianni.

      Gerald J. Pappert, First Deputy Attorney General of Pennsylvania, argued the cause for respondents. With him on the brief were D. Michael Fisher, Attorney General, John G. Knorr III, Chief Deputy Attorney General, and Gwendolyn T Mosley and Calvin R. Koons, Senior Deputy Attorneys General.

      Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Underwood, former Solicitor General Waxman, former Assistant Attorney General Ogden, Barbara L. Herwig, and Peter R. Maier.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by David C. Fathi, Elizabeth Alexander, Margaret Winter, Daniel L. Greenberg, John Boston, and Alphonse A. Ger-hardstein; for the Association of the Bar of the City of New York by Michael B. Mushlin and William J. Hold; and for the Brennan Center for Justice et al. by Robert J. Lukens, Richard P. Weishaupt, and Jonathan M. Stein.

      A brief of amici curiae urging affirmance was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Stephen P. Carney, Associate Solicitor, and Todd R. Marti, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Janet Na-politano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert R. Rigsby of the District of Columbia, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, John F. Tarantino of Guam, Earl I. Anzai of Hawaii, Alan Lance of Idaho, James E. Ryan of Illinois, Karen Freeman-Wilson of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, J. Joseph Cur-ran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, W. A. Drew Ed-mondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Comyn of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Mark L. Earley of Virginia, Iver A Siridiron of the Virgin Islands, Christine 0. Gregoire of Washington, and Gay Woodhouse of Wyoming.

   Justice Souter

delivered the opinion of the Court.

The Prison Litigation Reform Act of 1995 amended 42 U. S. C. § 1997e(a), which now requires a prisoner to exhaust “such administrative remedies as are available” before suing over prison conditions. The question is whether an inmate seeking only money damages must complete a prison administrative process that could provide some sort of relief on the eomplaint stated, but no money. We hold that he must.

I

Petitioner, Timothy Booth, was an inmate at the State Correctional Institution at Smithfield, Pennsylvania, when he began this action under Rev. Stat. §1979, 42 U. S. C. § 1983, in the United States District Court for the Middle District of Pennsylvania. He claimed that respondent corrections officers at Smithfield violated his Eighth Amendment right to be free from cruel and unusual punishment by assaulting him, bruising his wrists in tightening and twisting handcuffs placed upon him, throwing cleaning material in his face, and denying him medical attention to treat ensuing injuries. Booth sought various forms of injunctive relief, including transfer to another prison, as well as several hundred thousand dollars in money damages.

The Pennsylvania Department of Corrections provided an administrative grievance system at the time. It called for a written charge within 15 days of an event prompting an inmate’s complaint, which was referred to a grievance officer for investigation and resolution. If any action taken or recommended was unsatisfactory to the inmate, he could appeal to an intermediate reviewing authority, with the possibility of a further and final appeal to a central review committee. App. 46-50. While the grievance system addressed complaints of the abuse and excessive force Booth alleged, it had no provision for recovery of money damages.

Before resorting to federal court, Booth filed an administrative grievance charging at least some of the acts of abuse he later alleged in his action. Id., at 10-14. He did not, however, go beyond the first step, and never sought intermediate or final administrative review after the prison authority denied relief.

Booth’s failure to avail himself of the later stages of the administrative process led the District Court to dismiss the complaint without prejudice for failure to exhaust “administrative remedies . . . available” within the meaning of 42 U. S. C. § 1997e(a) (1994 ed., Supp. V). See App. to Pet. for Cert. 38a. The Court of Appeals for the Third Circuit affirmed, 206 F. 3d 289 (2000), rejecting Booth’s argument that the statutory exhaustion requirement is inapposite to his case simply because the Commonwealth’s administrative process could not award him the monetary relief he sought (money then being the only relief still requested, since Booth’s transfer to another institution had mooted his claims for injunctive orders). Although the Third Circuit acknowledged that several other Courts of Appeals had held the exhaustion requirement subject to exception when the internal grievance procedure could not provide an inmate-plaintiff with the purely monetary relief requested in his federal action, see, e. g., Whitley v. Hunt, 158 F. 3d 882 (CA5 1998); Lunsford v. Jumao-As, 155 F. 3d 1178 (CA9 1998); Garrett v. Hawk, 127 F. 3d 1263 (CA10 1997), the court found no such exception in the statute, 206 F. 3d, at 299-300; accord, Freeman v. Francis, 196 F. 3d 641 (CA6 1999); Alexander v. Hawk, 159 F. 3d 1321 (CA11 1998). We granted certiorari to address this conflict among the Circuits, 531 U.S. 956 (2000), and we now affirm.

II

In the aftermath of the Prison Litigation Reform Act of 1995, 42 U. S. C. § 1997e(a) (1994 ed., Supp. V) provides that

“[n]o action shall be brought with respect to prison conditions under section 1988 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”

The meaning of the phrase “administrative remedies . . . available” is the crux of the case, and up to a point the parties approach it with agreement. Neither of them denies that some redress for a wrong is presupposed by the statute’s requirement of an “available” “remed[y]”; neither argues that exhaustion is required where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint. The dispute here, then, comes down to whether or not a remedial scheme is “available” where, as in Pennsylvania, the administrative process has authority to take some action in response to a complaint, but not the remedial action an inmate demands to the exclusion of all other forms of redress.

In seeking the congressional intent, the parties urge us to give weight to practical considerations, among others, and at first glance Booth’s position holds some intuitive appeal. Although requiring an inmate to exhaust prison grievance procedures will probably obviate some litigation when the administrative tribunal can award at least some of the relief sought, Booth argues that when the prison’s process simply cannot satisfy the inmate’s sole demand, the odds of keeping the matter out of court are slim. See Reply Brief for Petitioner 16. The prisoner would be clearly burdened, while the government would obtain little or no value in return. The respondents, however, also have something to say. They argue that requiring exhaustion in these circumstances would produce administrative results that would satisfy at least some inmates who start out asking for nothing but money, since the very fact of being heard and prompting administrative change can mollify passions even when nothing ends up in the pocket. And one may suppose that the administrative process itself would filter out some frivolous claims and foster better-prepared litigation once a dispute did move to the courtroom, even absent formal factfinding. Although we have not accorded much weight to these possibilities in the past, see McCarthy v. Madigan, 503 U.S. 140,155-156 (1992), Congress, as we explain below, may well have thought we were shortsighted. See infra, at 739-741. In any event, the practical arguments for exhaustion at least suffice to refute Booth’s claim that no policy considerations justify respondents’ position. The upshot is that pragmatism is inconclusive.

Each of the parties also says that the plain meaning of the words “remedies” and “available” in the phrase “such administrative remedies . . . available” is controlling. But as it turns out both of them quote some of the same dictionary definitions of “available” “remedies,” and neither comes up with anything conclusive. Booth says the term “remedy” means a procedure that provides redress for wrong or enforcement of a right, and “available” means having sufficient power to achieve an end sought. See Brief for Petitioner 15-16 (citing Webster’s Third New International Dictionary 150, 1920 (1993) (defining “remedy” as “the legal means to recover a right or to prevent or obtain redress for a wrong” and “available” as “having sufficient power or force to achieve an end,” “capable of use for the accomplishment of a purpose,” and that which “is accessible or may be obtained”)). So far so good, but Booth then claims to be able to infer with particularity that when a prisoner demands money damages as the sole means to compensate his injuries, a grievance system without that relief offers no “available” “remed[y].” The general definitions, however, just do not entail such a specific conclusion.

It strikes us that the same definitions get the respondent corrections officers and their amicus the United States closer to firm ground for their assertion that the phrase “such administrative remedies as are available” naturally requires a prisoner to exhaust the grievance procedures offered, whether or not the possible responses cover the specific relief the prisoner demands. See Brief for Respondents 21. The United States tracks Booth in citing Webster’s Third New International Dictionary to define “remedy” as “the legal means to recover a right or to prevent or obtain redress for a wrong” and “available” as “capable of use for the accomplishment of a purpose.” Webster’s Third New International Dictionary, supra, at 150, 1920. But this exercise in isolated definition is ultimately inconclusive, for, depending on where one looks, “remedy” can mean either specific relief obtainable at the end of a process of seeking redress, or the process itself, the procedural avenue leading to some relief. See Black’s Law Dictionary 1296 (7th ed. 1999) (defining “remedy” alternatively as “[t]he means of enforcing a right or preventing or redressing a wrong,” or as “REMEDIAL ACTION_Cf. RELIEF”).

We find clearer pointers toward the congressional objective in two considerations, the first being the broader statutory context in which “available” “remedies” are mentioned. The entire modifying clause in which the words occur is this: “until such administrative remedies as are available are exhausted.” The “available” “remed[y]” must be “exhausted” before a complaint under §1983 may be entertained. While the modifier “available” requires the possibility of some relief for the action complained of (as the parties agree), the word “exhausted” has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered. It would, for example, be very strange usage to say that a prisoner must “exhaust” an administrative order reassigning an abusive guard before a prisoner could go to court and ask for something else; or to say (in States that award money damages administratively) that a prisoner must “exhaust” his damages award before going to court for more. How would he “exhaust” a transfer of personnel? Would he have to spend the money to “exhaust” the monetary relief given him? It makes no sense to demand that someone exhaust “such administrative [redress]” as is available; one “exhausts” processes, not forms of relief, and the statute provides that one must.

A second consideration, statutory history, confirms the suggestion that Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible. Before §1997e(a) was amended by the Act of 1995, a court had discretion (though no obligation) to require a state inmate to exhaust “such . . . remedies as are available,” but only if those remedies were “plain, speedy, and effective.” 42 U. S. C. § 1997e(a) (1994 ed.). That scheme, however, is now a thing of the past, for the amendments eliminated both the discretion to dispense with administrative exhaustion and the condition that the remedy be “plain, speedy, and effective” before exhaustion could be required.

The significance of deleting that condition is apparent in light of our decision two years earlier in McCarthy v. Madigan, supra. In McCarthy, a federal inmate, much like Booth, sought only money damages against federal prison officials, and the Bureau of Prison’s administrative procedure offered no such relief. Although § 1997e(a) did not at that time apply to suits brought against federal officials, the government argued that the Court should create an analogous exhaustion requirement for Bivens actions. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). It proposed § 1997e(a) as a model, on the assumption that the provision required exhaustion by those seeking nothing but money damages even when money was unavailable at the administrative level. We understood the effect of § 1997e(a) to be quite different, however. See 503 U. S., at 149-151. In holding that exhaustion was not required, we reasoned in part from the language of § 1997e(a) that required an “effective” administrative remedy as a precondition to exhaustion. Id., at 150. When a prisoner sought only money damages, we indicated, only a procedure able to provide money damages would be “effective” within the meaning of the statute. Ibid. (“[I]n contrast to the absence of any provision for the award of money damages under the Bureau’s general grievance procedure, the statute conditions exhaustion on the existence of ‘effective administrative remedies’”); see also id., at 156 (Rehnquist, C.J., joined by Scaua and Thomas, 33., concurring in judgment) (“[I]n eases ... where prisoners seek monetary relief, the Bureau’s administrative remedy furnishes no effective remedy”).

When Congress replaced the text of the statute as construed in McCarthy with the exhaustion requirement at issue today, it presumably understood that under McCarthy the term “effective” in the former §1997e(a) eliminated the possibility of requiring exhaustion of administrative remedies when an inmate sought only monetary relief and the administrative process offered none. It has to be significant that Congress removed the very term we had previously emphasized in reaching the result Booth now seeks, and the fair inference to be drawn is that Congress meant to preclude the McCarthy result. Congress’s imposition of an obviously broader exhaustion requirement makes it highly implausible that it meant to give prisoners a strong inducement to skip the administrative process simply by limiting prayers for relief to money damages not offered through administrative grievance mechanisms.

Thus, we think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures. Cf. McCarthy, 503 U.S., at 144 (“Where Congress specifically mandates, exhaustion is required”). We accordingly affirm the judgment of the Third Circuit.

It is so ordered.

       The Commonwealth has since modified its grievance scheme to permit awards of money. App. 60.

       There is some uncertainty, probably stemming in part from the ambiguity of Booth’s pro se filings in District Court, as to whether all of Booth’s claims for relief other than money damages became moot when he was transferred. See Brief for Petitioner 12, n. 7; Brief for United States as Amicus Curiae 10, n. 2. We assume for present purposes that only Booth’s claims for money damages remain.

       110 Stat. 1321, as renumbered and amended.

       Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust. The parties do not dispute that the state grievance system at issue in this case has authority to take some responsive action with respect to the type of allegations Booth raises.

       This inference is, to say the least, also consistent with Congress’s elimination of the requirement that administrative procedures must satisfy certain “minimum acceptable standards” of fairness and effectiveness before inmates can be required to exhaust them, and the elimination of eourts’ discretion to excuse exhaustion when it would not be “appropriate and in the interests of justice.” Compare 42 U. S. C. § 1997e(a) (1994 ed., Supp. V) with 42 U. S. C. § 1997e(a) (1994 ed.).

       That Congress has mandated exhaustion in either case defeats the argument of Booth and supporting amid that this reading of §1997e (1994 ed., Supp. V) is at odds with traditional doctrines of administrative exhaustion, under which a litigant need not apply to an agency that has “no power to decree... relief,” Reiter v. Cooper, 507 U. S. 258,269 (1993), or need not exhaust where doing so would otherwise be futile. See Brief for Petitioner 24-27; Brief for Brennan Center for Justice et al. as Amid Curiae. Without getting into the force of this claim generally, we stress the point (which Booth acknowledges, see Reply Brief for Petitioner 4) that we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992); c£ Weinberger v. Salfi, 422 U.S. 749, 766-767 (1975). Here, we hold only that Gongress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.


author: Justice Ginsburg

text:
    NEW HAMPSHIRE v. MAINE
    No. 130, Orig.
    Argued April 16,2001
    Decided May 29, 2001

      Paul R Stern, Deputy Attorney General of Maine, argued the cause for defendant. With Mm on the briefs were An

      drew Ketterer, Attorney General, and Christopher C. Taub and William R. Stokes, Assistant Attorneys General.

      Jeffrey P. Minear argued the cause for the United States as amicus curiae. With him on the brief were former So He-itor General Waccman, Assistant. Attorney General Schiffer, Deputy Solicitor General Kneedler, and Patricia Weiss.

      Leslie J. Ludtke, Associate Attorney General of New Hampshire, argued the cause for plaintiff With her on the briefs were Phillip T. McLaughlin, Attorney General, and John R. Harrington.

   Justice Ginsburg

delivered the opinion of the Court.

The Piscataqua River lies at the southeastern end of New Hampshire’s boundary with Maine. The river begins at the headwaters of Salmon Falls and runs seaward into Portsmouth Harbor (also known as' Piscataqua Harbor). On March 6, 2000, New Hampshire brought this original action against Maine, claiming that the Piscataqua River boundary runs along the Maine shore and that the entire river and all of Portsmouth Harbor belong to New Hampshire. Maine has filed a motion to dismiss on the ground that two prior proceedings — a 1740 boundary determination by King George II and a 1977 consent judgment entered by this Court — definitively fixed the Piscataqua River boundary at the middle of the river’s main channel of navigation.

The 1740 decree located the Piscataqua River boundary at the “Middle of the River.” Because New Hampshire, in the 1977 proceeding, agreed without reservation that the words “Middle of the River” mean the middle of the Pis-cataqua River’s main channel of navigation, we conclude that New Hampshire is estopped from asserting now that the boundary runs along the Maine shore. Accordingly, we grant Maine’s motion to dismiss the complaint.

I

New Hampshire and Maine share a border that runs from northwest to southeast. At the southeastern end of the border, the easternmost point of New Hampshire meets the southernmost point of Maine. The boundary in this region follows the Piscataqua River eastward into Portsmouth Harbor and, from there, extends in a southeasterly direction into the sea. Twenty-five years ago, in a dispute between the two States over lobster fishing rights, this Court entered a consent judgment fixing the precise location of the “lateral marine boundary,” i. e., the boundary in the marine waters off the coast of New Hampshire and Maine, from the closing line of Portsmouth Harbor five miles seaward to Gosport Harbor in the Isles of Shoals. New Hampshire v. Maine, 426 U. S. 363 (1976); New Hampshire v. Maine, 434 U.S. 1, 2 (1977). This ease concerns the location of the Maine-New Hampshire boundary along the inland stretch of the Pis-cataqua River, from the mouth of Portsmouth Harbor westward to the river’s headwaters at Salmon Falls. (A map of the region appears as an appendix to this opinion.)

In the 1970’s contest over the lateral marine boundary, we summarized the history of the interstate boundary in the Piscataqua River region. See New Hampshire v. Maine, 426 U.S., at 366-367. The boundary, we said, “was in fact fixed in 1740 by decree of Ring George II of England” as follows:

“‘That the Dividing Line shall pass up thro the Mouth of Piscataqua Harbour and up the Middle of the River .... And that the Dividing Line shall part the Isles of Shoals and run thro the Middle of the Har-bour between the Islands to the Sea on the Southerly Side....’ ” Id., at 366 (quoting the 1740 decree).

In 1976, New Hampshire and Maine “expressly agree[d] . . . that the decree of 1740 fixed the boundary in the Pis-cataqua Harbor area.” Id., at 367 (internal quotation marks omitted). “Their quarrel was over the location ... of the ‘Mouth of Piscataqua River,’ ‘Middle of the River,’ and ‘Middle of the Harbour’ within the contemplation of the decree.” Ibid. The meaning of those terms was essential to delineating the lateral marine boundary. See Report of Special Master, O. T. 1975, No. 64 Orig., pp. 32-49 (hereinafter Report). In particular, the northern end of the lateral marine boundary required a determination of the point where the line marking the “Middle of the [Piseataqua] River” crosses the closing line of Piseataqua Harbor. Id., at 43.

In the course of litigation, New Hampshire and Maine proposed a consent decree in which they agreed, inter alia, that the words “Middle of the River” in the 1740 decree refer to the middle of the Piseataqua River’s main channel of navigation. Motion for Entry of Judgment By Consent of Plaintiff and Defendant in New Hampshire v. Maine, O. T. 1973, No. 64 Orig., p. 2 (hereinafter Motion for Consent Judgment). The Special Master, upon reviewing pertinent history, rejected the States’ interpretation and concluded that “the geographic middle of the river and not its main or navigable channel was intended by the 1740 decree.” Report 41. This Court determined, however, that the States’ interpretation “reasonably invested] imprecise terms” with a definition not “wholly contrary to relevant evidence.” New Hampshire v. Maine, 426 U.S., at 369. On that basis, the Court declined to adopt the Special Master’s construction of “Middle of the River” and directed entry of the consent decree. Id., at 369-370. The final decree, entered in 1977, defined “Middle of the River” as “the middle of the main channel of navigation of the Piseataqua River.” New Hampshire v. Maine, 434 U.S., at 2.

The 1977 consent judgment fixed only the lateral marine boundary and not the inland Piseataqua River boundary. See Report 42-43 (“For the purposes of the present dispute, ... it is unnecessary to lay out fully the course of the boundary as it proceeds upriver ....”). In the instant action, New Hampshire contends that the inland river boundary “run[s] along the low water mark on the Maine shore,” Complaint 49, and asserts sovereignty over the entire river and all of Portsmouth Harbor, including the Portsmouth Naval Shipyard on Seavey Island located within the harbor just south of Kittery, Maine, id., at 34. Relying on various historical records, New Hampshire urges that “Middle of the River,” as those words were used in 1740, denotes the main branch of the river, not a midchannel boundary, Brief in Opposition to Motion to Dismiss 12-16, and that New Hampshire, not Maine, exercised sole jurisdiction over shipping and military activities in Portsmouth Harbor during the decades before and after the 1740 decree, id., at 17-19, and nn. 35-38.

While disagreeing with New Hampshire’s understanding of history, see Motion to Dismiss 9-14,18-19 (compiling evidence that Maine continually exercised jurisdiction over the harbor and shipyard from the 1700’s to the present day), Maine primarily contends that the 1740 decree and the 1977 consent judgment divided the Piseataqua River at the middle of the main channel of navigation — a division that places Seavey Island within Maine’s jurisdiction. Those earlier proceedings, according to Maine, bar New Hampshire’s complaint under principles of claim and issue preclusion as well as judicial estoppel.

We pretermit the States’ competing historical claims along with their arguments on the application vel non of the res judicata doctrines commonly called claim and issue preclusion. Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim. See Restatement (Second) of Judgments §§ 17, 27, pp. 148, 250 (1980); D. Shapiro, Civil Procedure: Preclusion in Civil Actions 32, 46 (2001). In the unusual circumstances this case presents, we conclude that a discrete doctrine, judicial estoppel, best fits the controversy. Under that doctrine, we hold, New Hampshire is equitably barred from asserting — contrary to its position in the 1970’s litigation — that the inland Piscataqua River boundary runs along the Maine shore.

II

“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Davis v. Wakelee, 156 U.S. 680, 689 (1895). This rule, known as judicial estoppel, “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Pegram v. Herdrich, 530 U.S. 211, 227, n. 8 (2000); see 18 Moore’s Federal Practice §134.30, p. 134-62 (3d ed. 2000) (“The doetrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding”); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4477, p.782 (1981) (hereinafter Wright) (“absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory”).

Although we have not had occasion to discuss the doctrine elaborately, other courts have uniformly recognized that its purpose is “to protect the integrity of the judicial process,” Edwards v. Aetna Life Ins. Co., 690 F. 2d 595, 598 (CA6 1982), by “prohibiting parties from deliberately changing positions according to the exigencies of the moment,” United States v. McCaskey, 9 F. 3d 368, 378 (CA5 1993). See In re Cassidy, 892 F. 2d 637, 641 (CA7 1990) (“Judicial estoppel is a doctrine intended to prevent the perversion of the judicial process.”); Allen v. Zurich Ins. Co., 667 F. 2d 1162, 1166 (CA4 1982) (judicial estoppel “proteet[s] the essential integrity of the judicial process”); Scarano v. Central R. Co., 203 F. 2d 510, 513 (CA3 1953) (judicial estoppel prevents parties from “playing ‘fast and loose with the courts’ ” (quoting Stretch v. Watson, 6 N. J. Super. 456, 469, 69 A. 2d 596, 603 (1949))). Because the rule is intended to prevent “improper use of judicial machinery,” Konstantinidis v. Chen, 626 F. 2d 933, 938 (CADC 1980), judicial estoppel “is an equitable doctrine invoked by a court at its discretion,” Russell v. Rolfs, 893 F. 2d 1033, 1037 (CA9 1990) (internal quotation marks and citation omitted).

Courts have observed that “[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” Allen, 667 F. 2d, at 1166; accord, Lowery v. Stovall, 92 F. 3d 219, 223 (CA4 1996); Patriot Cinemas, Inc. v. General Cinema Corp., 834 F. 2d 208, 212 (CAl 1987). Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. United States v. Hook, 195 F. 3d 299, 306 (CA7 1999); In re Coastal Plains, Inc., 179 F. 3d 197, 206 (CA5 1999); Hossaini v. Western Mo. Medical Center, 140 F. 3d 1140, 1143 (CA8 1998); Maharaj v. Bankamerica Corp., 128 F. 3d 94, 98 (CA2 1997). Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would ereate “the perception that either the first or the second court was misled,” Edwards, 690 F. 2d, at 599. Absent sue-cess in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” United States v. C. I. T. Constr. Inc., 944 F. 2d 253, 259 (CA5 1991), and thus poses little threat to judicial integrity. See Hook, 195 F. 3d, at 306; Maharaj, 128 F. 3d, at 98; Konstantinidis, 626 F. 2d, at 939. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. See Davis, 156 U.S., at 689; Philadelphia, W., & B. R. Co. v. Howard, 13 How. 307, 335-337 (1852); Scarano, 203 F. 2d, at 513 (judicial estoppel forbids use of “intentional self-contradiction ... as a means of obtaining unfair advantage”); see also 18 Wright §4477, p.782.

In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts. In this case, we simply observe that the factors above firmly tip the balance of equities in favor of barring New Hampshire’s present complaint.

New Hampshire’s claim that the Piseataqua River boundary runs along the Maine shore is clearly inconsistent with its interpretation of the words “Middle of the River” during the 1970’s litigation. As mentioned above, supra, at 747, interpretation of those words was “necessary” to fixing the northern endpoint of the lateral marine boundary, Report 43. New Hampshire offered two interpretations in the earlier proceeding — first agreeing with Maine in the proposed consent decree that “Middle of the River” means the middle of the main channel of navigation, and later agreeing with the Special Master that the words mean the geographic middle of the river. Both constructions located the “Middle of the River” somewhere other than the Maine shore of the Pis-eataqua River.

Moreover, the record of the 1970’s dispute makes clear that this Court accepted New Hampshire’s agreement with Maine that “Middle of the River” means middle of the main navigable channel, and that New Hampshire benefited from that interpretation. New Hampshire, it is true, preferred the interpretation of “Middle of the River” in the Special Master’s report. See Exceptions and Brief for Plaintiff in New Hampshire v. Maine, O. T. 1975, No. 64 Grig., p. 3 (hereinafter Plaintiff’s Exceptions) (“the boundary now proposed by the Special Master is more favorable to [New Hampshire] than that recommended in the proposed consent decree”). But the consent decree was sufficiently favorable to New Hampshire to garner its approval. Although New Hampshire now suggests that it “compromised in Maine’s favor” on the definition of “Middle of the River” in the 1970’s litigation, Brief in Opposition to Motion to Dismiss 24, that “compromise” enabled New Hampshire to settle the case, see id., at 24-25, on terms beneficial to both States. Notably, in their joint motion for entry of the consent decree, New Hampshire and Maine represented to this Court that the proposed judgment was “in the best interest of each State.” Motion for Consent Judgment 1. Relying on that representation, the Court accepted the boundary proposed by the two States. New Hampshire v. Maine, 434 U.S. 1 (1977).

At oral argument, New Hampshire urged that the consent decree simply fixed the “Middle of the River” at “an arbitrary location based on the administrative convenience of the parties.” Tr. of Oral Arg. 37. To the extent New Hampshire implies that the parties settled the lateral marine boundary dispute without judicial endorsement of their interpretation of “Middle of the River,” that view is foreclosed by the Court’s determination that “[t]he consent decree . . . proposes a wholly permissible final resolution of the controversy both as to facts and law,” New Hampshire v. Maine, 426 U.S., at 368-369. Three dissenting Justices agreed with New Hampshire that the consent decree interpreted the middle-of-the-river language “by agreements of convenience” and not “in accordance with legal principles.” Id., at 371 (White, J., joined by Blaekmun and Stevens, JJ., dissenting). But the Court concluded otherwise, noting that its acceptance of the consent decree involved “[n]othing remotely resembling ‘arbitral’ rather than ‘judicial’ functions,” id., at 369. The consent decree “reasonably invested] imprecise terms with definitions that give effect to [the 1740] decree,” ibid., and “[did] not fall into the category of agreements that we reject because acceptance would not be consistent with our Art. Ill function and duty,” ibid.

New Hampshire also contends that the 1977 consent decree was entered without “a searching historical inquiry into what that language [‘Middle of the River’] meant.” Tr. of Oral Arg. 39. According to New Hampshire, had it known then what it knows now about the relevant history, it would not have entered into the decree. Ibid. We do not question that it may be appropriate to resist application of judicial estoppel “when a party’s prior position was based on inadvertence or mistake.” John S. Clark Co. v. Faggert & Frieden, P. C., 65 F. 3d 26, 29 (GA4 1995); see In re Corey, 892 F. 2d 829, 836 (GA9 1989); Konstantinidis, 626 F. 2d, at 939. We are unpersuaded, however, that New Hampshire’s position in 1977 fairly may be regarded as a product of inadvertence or mistake.

The pleadings in the lateral marine boundary case show that New Hampshire did engage in “a searching historical inquiry” into the meaning of “Middle of the River.” See Reply Brief for Plaintiff in New Hampshire v. Maine, O. T. 1975, No. 64 Orig., pp. 3-9 (examining history of river boundaries under international law, proceedings leading up to the 1740 order of the King in Council, and relevant precedents of this Court). None of the historical evidence cited by New Hampshire remotely suggested that the Piscataqua River boundary runs along the Maine shore. In fact, in attempting to place the boundary at the geographic middle of the river, New Hampshire acknowledged that its agents in 1740 understood the King’s order to “adjudg[e] half of the river to” the portion of Massachusetts that is now Maine. Id., at 6 (emphasis in original) (quoting N. H. State Papers, XIX, pp. 591, 596-597); see Reply Brief in No. 64 Orig., supra, at 4 (“The intention of those participating in the proceedings leading to the [174.0 decree] was to use ‘geographic middle’ as the Piscataqua boundary.” (emphasis in original)). In addition, this Court independently determined that “there is nothing to suggest that the location of the 1740 boundary agreed upon by the States is wholly contrary to relevant evidence.” New Hampshire v. Maine, 426 U.S., at 369.

Nor can it be said that New Hampshire lacked the opportunity or incentive to locate the river boundary at Maine’s shore. In its present complaint, New Hampshire relies on historical materials — primarily official documents and events from the eolonial and posteolonial periods, see Brief in Opposition to Motion to Dismiss 12-19 — that were no less available 25 years ago than they are today. And New Hampshire had every reason to consult those materials: A river boundary running along Maine’s shore would have placed the northern terminus of the lateral marine boundary much closer to Maine, “resulting] in hundreds if not thousands of additional acres of territory being in New Hampshire rather than Maine,” Tr. of Oral Arg. 48 (rebuttal argument of Maine). Tellingly, New Hampshire at the time understood the importance of placing the northern terminus as close to Maine as possible. While agreeing with the Special Master that “Middle of the River” means geographic middle, New Hampshire insisted that the geographic middle should be determined by using the banks of the river, not low tide elevations (as the Special Master had proposed), as the key reference points — a . methodology that would have placed the northern terminus 350 yards closer to the Maine shore. Plaintiff’s Exceptions 3.

In short, considerations of equity persuade us that application of judicial estoppel is appropriate in this case. Having convinced this Court to accept one interpretation of “Middle of the River,” and having benefited from that interpretation, New Hampshire now urges an inconsistent interpretation to gain an additional advantage at Maine’s expense. Were we to accept New Hampshire’s latest view, the “risk of inconsistent court determinations,” C. I. T. Constr. Inc., 944 F. 2d, at 259, would become a reality. We cannot interpret “Middle of the River” in the 1740 decree to mean two different things along the same boundary line without undermining the integrity of the judicial process.

Finally, notwithstanding the balance of equities, New Hampshire points to this Court’s recognition that “ordinarily the doctrine of estoppel or that part of it which precludes inconsistent positions in judicial proceedings is not applied to states,” Illinois ex rel. Gordon v. Campbell, 329 U. S. 362, 369 (1946). Of course, “broad interests of public policy may make it important to allow a change of positions that might seem inappropriate as a matter of merely private interests.” 18 Wright §4477, p.784. But this is not a case where estoppel would compromise a governmental interest in enforcing the law. Cf. Heckler v. Community Health Services of Crawford Cty., Inc., 467 U.S. 51, 60 (1984) (“When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant.”). Nor is this a case where the shift in the government’s position is “the result of a change in public policy,” United States v. Owens, 54 F. 3d 271, 275 (CA6 1995); cf. Commissioner v. Sunnen, 333 U.S. 591, 601 (1948) (collateral estoppel does not apply to Commissioner where pertinent statutory provisions or Treasury regulations have changed between the first and second proceeding), or the result of a change in facts essential to the prior judgment, cf. Montana v. United States, 440 U.S. 147, 159 (1979) (“changes in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues”). Instead, it is a case between two States, in which each owes the other a full measure of respect.

What has changed between 1976 and today is New Hampshire’s interpretation of the historical evidence concerning the King’s 1740 decree. New Hampshire advances its new interpretation not to enforce its own laws within its borders, but to adjust the border itself. Given Maine’s countervailing interest in the location of the boundary, we are unable to discern any “broad interest] of public policy,” 18 Wright § 4477, p. 784, that gives New Hampshire the prerogative to construe “Middle of the River” differently today than it did 25 years ago.

* * *

For the reasons stated, we conclude that judicial estoppel bars New Hampshire from asserting that the Piscataqua River boundary runs along the Maine shore. Accordingly, we grant Maine’s motion to dismiss the complaint.

It is so ordered.

Justice Squter took no part in the consideration or decision of this ease.

[Appendix containing Portsmouth Harbor to Isles of Shoals map follows this page.]

Adapted from Map 13283, Portsmouth Harbor to Isles of Shoals, National Oceanic and Atmospheric Administration, U.S. Department of Commerce (18th ed. Nov. 2000).

       According to New Hampshire, the Federal Government in recent years has taken steps to dose portions of the shipyard and to lease its land and fadlities to private developers. Complaint 34. New Hampshire and Maine assert competing daims of sovereignty over private development on shipyard lands. Ibid.