author: Chief Justice Rehnquist Justice Thomas, Justice Ginsburg,

text:
    KOWALSKI, JUDGE, 26th JUDICIAL CIRCUIT COURT OF MICHIGAN, et al. v. TESMER et al.
    No. 03-407.
    Argued October 4, 2004
    Decided December 13, 2004

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 134. Ginsburg, J., filed a dissenting opinion, in which STEVENS and Souter, JJ., joined, post, p. 136.

      Thomas L. Casey, Solicitor General of Michigan, argued the cause for petitioners. With him on the briefs was Michael A. Cox, Attorney General. Jvdy E. Bregman filed briefs for respondent Kolenda in support of petitioners under this Court’s Rule 12.6.

      David A. Moran argued the cause for respondents Tesmer et al. With him on the briefs were Michael J. Steinberg, Kary L. Moss, Mark Granzotto, and Steven R. Shapiro.

       Briefs of amici curiae urging reversal were filed for the State of Iowa et al. by Thotnas J. Miller, Attorney General of Iowa, Douglas R. Marek, Deputy Attorney General, Darrel Mullins, Assistant Attorney General, and Gene C. Schaerr, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Charles J. Crist of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Joseph, Curran, Jr., of Maryland, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Henry D. McMaster of South Carolina, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Christine O. Gregoire of Washington; and for Wayne County, Michigan, by Timothy A. Baughman.

      Briefs of amici curiae urging affirmance were filed for the American Bar Association by Dennis W. Archer, Seth P. Waxman, and Paul R. Q. Wolfson; for the National Association of Criminal Defense'Lawyers et al. by Anthony J. Frame, Sheila B. Scheuerman, Steven D. Benjamin, and Paul M. Rashkind; and for the National Legal Aid and Defender Association by Elliot H. Scherker and Karen M. Gottlieb.

   Chief Justice Rehnquist

delivered the opinion of the Court.

This case involves a constitutional challenge to Michigan’s procedure for appointing appellate counsel for indigent defendants who plead guilty. The only challengers before us are two attorneys who seek to invoke the rights of hypothetical indigents to challenge the procedure. We hold that the attorneys lack standing and therefore do not reach the question of the procedure’s constitutionality.

In 1994, Michigan amended its Constitution to provide that “an appeal by an accused who pleads guilty or nolo conten-dere shall be by leave of the court” and not as of right. Mich. Const., Art. I, §20. Following this amendment, several Michigan state judges began to deny appointed appellate counsel to indigents who pleaded guilty, and the Michigan Legislature subsequently codified this practice. See Mich. Comp. Laws Ann. § 770.3a (West 2000). Under the statute, which was scheduled to go into effect on April 1, 2000, appointment of appellate counsel for indigents who plead guilty is prohibited, with certain mandatory and permissive exceptions. Ibid.

A challenge to the Michigan practice was filed in the United States District Court for the Eastern District of Michigan. The named plaintiffs included the two attorney respondents and three indigents who were denied appellate counsel after pleading guilty. Pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983, they alleged that the Michigan practice and statute denied indigents their federal constitutional rights to due process and equal protection. They sought declaratory and injunctive relief against the practice and the statute.

A day before the statute was to take effect, the District Court issued an order holding the practice and statute unconstitutional. Tesmer v. Granholm, 114 F. Supp. 2d 603 (2000). It ultimately issued an injunction that bound all Michigan state judges, requiring them not to deny appellate counsel to any indigent who pleaded guilty. 114 F. Supp. 2d 622 (2000). A panel of the Court of Appeals for the Sixth Circuit reversed. Tesmer v. Granholm, 295 F. 3d 536 (2002). The panel held that Younger v. Harris, 401 U. S. 37 (1971), abstention barred the suit by the indigents but that the attorneys had third-party standing to assert the rights of indigents. It then held that the statute was constitutional. The Court of Appeals granted rehearing en banc and reversed. Tesmer v. Granholm, 333 F. 3d 683 (2003). The en banc majority agreed with the panel on standing but found that the statute was unconstitutional. Separate dissents were filed, challenging the application of third-party standing and the holding that the statute was unconstitutional. We granted certiorari. 540 U. S. 1148 (2004).

The doctrine of standing asks whether a litigant is entitled to have a federal court resolve his grievance. This inquiry involves “both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U. S. 490, 498 (1975). In this ease, we do not focus on the constitutional minimum of standing, which flows from Article Ill’s case-or-controversy requirement. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). Instead, we shall assume the attorneys have satisfied Article III and address the alternative threshold question whether they have standing to raise the rights of others. See Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 585 (1999).

We have adhered to the rule that a party “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, supra, at 499. This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation. See 422 U. S., at 500. It represents a “healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed,” Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955, n. 5 (1984), the courts might be “called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights,” Warth v. Seldin, supra, at 500.

We have not treated this rule as absolute, however, recognizing that there may be circumstances where it is necessary to grant a third party standing to assert the rights of another. But we have limited this exception by requiring that a party seeking third-party standing make two additional showings. First, we have asked whether the party asserting the right has a “close” relationship with the person who possesses the right. Powers v. Ohio, 499 U. S. 400, 411 (1991). Second, we have considered whether there is a “hindrance” to the possessor’s ability to protect his own interests. Ibid.

We have been quite forgiving with these criteria in certain circumstances. “Within the context of the First Amendment,” for example, “the Court has enunciated other concerns that justify a lessening of prudential limitations on standing.” Secretary of State of Md. v. Joseph H. Munson Co., supra, at 956. And “[i]n several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction dgainst the litigant would result indirectly in the violation of third parties’ rights.” Warth v. Seldin, supra, at 510 (emphasis added) (citing Doe v. Bolton, 410 U. S. 179 (1973); Griswold v. Connecticut, 381 U. S. 479 (1965); Barrows v. Jackson, 346 U. S. 249 (1953)); see Craig v. Boren, 429 U. S. 190 (1976). Beyond these examples — none of which is implicated here — we have not looked favorably upon third-party standing. See, e. g., Conn v. Gabbert, 526 U. S. 286, 292-293 (1999) (rejecting an attorney’s attempt to adjudicate the rights of a client). With this in mind, we turn to apply our “close relationship” and “hindrance” criteria to the facts before us.

The attorneys in this case invoke the attorney-client relationship to demonstrate the requisite closeness. Specifically, they rely on a future attorney-client relationship with as yet unascertained Michigan criminal defendants “who will request, but be denied, the appointment of appellate counsel, based on the operation” of the statute. App. 17a, ¶ 37 (Complaint). In two cases, we have recognized an attorney-client relationship as suffiicient to confer third-party standing. See Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 (1989); Department of Labor v. Triplett, 494 U. S. 715 (1990). In Caplin & Drysdale, Chartered v. United States, supra, we granted a law firm third-party standing to challenge a drug forfeiture statute by invoking the rights of an existing client. Id., at 624, n. 3. This existing attorney-client relationship is, of course, quite distinct from the hypothetical attorney-client relationship posited here.

In Department of Labor v. Triplett, supra, we dealt with the Black Lung Benefits Act of 1972, which prohibited attorneys from accepting fees for representing claimants, unless such fees were approved by the appropriate agency or court. 30 U. S. C. § 932(a) (1982 ed., Supp. V). An attorney, George Triplett, violated the Act and its implementing regulations by agreeing to represent claimants for 25% of any award obtained and then collecting those fees without the required approval. The state bar disciplined Triplett, and we allowed Triplett third-party standing to invoke the due process rights of the claimants to challenge the fee restriction that resulted in his punishment. 494 U. S., at 720-721. Triplett is different from this case on two levels. First, Triplett falls within that class of cases where we have “allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Warth v. Seldin, supra, at 510 (emphasis added). Second, and similar to Caplin & Drysdale, Triplett involved the representation of known claimants. The attorneys before us do not have a “close relationship” with their alleged “clients”; indeed, they have no relationship at all.

We next consider whether the attorneys have demonstrated that there is a “hindrance” to the indigents’ advancing their own constitutional rights against the Michigan scheme. Powers v. Ohio, supra, at 411. It is uncontested that an indigent denied appellate counsel has open avenues to argue that denial deprives him of his constitutional rights. He may seek leave to challenge that denial in the Michigan Court of Appeals and, if denied, seek leave in the Michigan Supreme Court. See Mich. Comp. Laws Ann. § 770.3 (West Supp. 2004). He then may seek a writ of certiorari in this Court. See 28 U. S. C. § 1257(a). Beyond that, there exists both state and federal collateral review. See Mich. Rule Crim. Proc. 6.500 (2004); 28 U. S. C. § 2254.

The attorneys argue that, without counsel, these avenues are effectively foreclosed to indigents. They claim that unsophisticated, pro se criminal defendants could not satisfy the necessary procedural requirements, and, if they did, they would be unable to coherently advance the substance of their constitutional claim.

That hypothesis, however, was disproved in the Michigan courts, see, e. g., People v. Jackson, 463 Mich. 949, 620 N. W. 2d 528 (2001) (pro se defendant sought leave to appeal denial of appointment of appellate counsel to the Michigan Court of Appeals and the Michigan Supreme Court); People v. Wilkins, 463 Mich. 949, 620 N. W. 2d 528 (2001) (same), and this Court, see Pet. for Cert. in Halbert v. Michigan, O. T. 2004, No. 03-10198 (pending request for writ of certiorari by a pro se defendant challenging the denial of appellate counsel). While we agree that an attorney would be valuable to a criminal defendant challenging the constitutionality of the scheme, we do not think that the lack of an attorney here is the type of hindrance necessary to allow another to assert the indigent defendants’ rights. See Powers v. Ohio, supra, at 411.

We also are unpersuaded by the attorneys’ “hindrance” argument on a more fundamental level. If an attorney is all that the indigents need to perfect their challenge in state court and beyond, one wonders why the attorneys asserting this § 1983 action did not attend state court and assist, them. We inquired into this question at oral argument but did not receive a satisfactory answer. See Tr. of Oral Arg. 28-29, 35-40. It is a fair inference that the attorneys and the three indigent plaintiffs that filed this § 1983 action did not want to allow the state process to take its course. Rather, they wanted a federal court to short circuit the State’s adjudication of this constitutional question. That is precisely what they got.

“[PJederal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design.” Ruhrgas AG v. Marathon Oil Co., 526 U. S., at 586. The doctrine of Younger v. Harris, 401 U. S. 37 (1971), reinforces our federal scheme by preventing a state criminal defendant from asserting ancillary challenges to ongoing state criminal procedures in federal court. Id., at 54-55.

In this case, the three indigent criminal defendants who were originally plaintiffs in this § 1983 action were appropriately dismissed under Younger. As the Court of Appeals unanimously recognized, they had ongoing state criminal proceedings and ample avenues to raise their constitutional challenge in those proceedings. 333 F. 3d, at 690-691. There also was no extraordinary circumstance requiring federal intervention. Ibid. An unwillingness to allow the Younger principle to be thus circumvented is an additional reason to deny the attorneys third-party standing.

In sum, we hold that the attorneys do not have third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel. We agree with the dissenting opinion in the Court of Appeals that “it would be a short step from the . . . grant of third-party standing in this case to a holding that lawyers generally have third-party standing to bring in court the claims of future unascertained clients.” 333 F. 3d, at 709 (Rogers, J., concurring in part and dissenting in part).

The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

That this case is even remotely close demonstrates that our third-party standing cases have gone far astray. We have granted third-party standing in a number of cases to litigants whose relationships with the directly affected individuals were at best remote. We have held, for instance, that beer vendors have standing to raise the rights of their prospective young male customers, see Craig v. Boren, 429 U. S. 190, 192-197 (1976); that criminal defendants have standing to raise the rights of jurors excluded from service, see Powers v. Ohio, 499 U. S. 400, 410-416 (1991); that sellers of mail-order contraceptives" have standing to assert the rights of potential customers, see Carey v. Population Services Int’l, 431 U. S. 678, 682-684 (1977); that distributors of contraceptives to unmarried persons have standing to litigate the rights of the potential recipients, Eisenstadt v. Baird, 405 U. S. 438, 443-446 (1972); and that white sellers of land have standing to litigate the constitutional rights of potential black purchasers, see Barrows v. Jackson, 346 U. S. 249, 254-258 (1953). I agree with the Court that “[t]he attorneys before us do not have a ‘close relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.” Ante, at 131. The Court of Appeals understandably could have thought otherwise, given how generously our precedents have awarded third-party standing.

It is doubtful whether a party who has no personal constitutional right at stake in a case should ever be allowed to litigate the constitutional rights of others. Before Truax v. Raich, 239 U. S. 33, 38-39 (1915), and Pierce v. Society of Sisters, 268 U. S. 510, 535-536 (1925), this Court adhered to the rule that “[a] court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it.” Clark v. Kansas City, 176 U. S. 114, 118 (1900) (internal quotation marks omitted). This made sense. Litigants who have no personal right at stake may have very different interests from the individuals whose rights they are raising. Moreover, absent a personal right, a litigant has no cause of action (or defense), and thus no right to relief. It may be too late in the day to return to this traditional view. But even assuming it makes sense to grant litigants third-party standing in at least some cases, it is more doubtful still whether third-party standing should sweep as broadly as our cases have held that it does.

Because the Court’s opinion is a reasonable application of our precedents, I join it in full.

Justice Ginsburg,

with whom Justice Stevens and Justice Souter join,

dissenting.

Plaintiffs-respondents Arthur M. Fitzgerald and Michael D. Vogler are Michigan attorneys who have routinely received appointments to represent defendants in state-court criminal appeals, including appeals from plea-based convictions. They assert third-party standing to challenge a state law limiting an indigent’s right to counsel: As codified in Mich. Comp. Laws Ann. §770.3a(l) (West 2000), the challenged law prescribes that most indigents

“who plea[d] guilty, guilty but mentally ill, or nolo con-tendere shall not have appellate counsel appointed for review of the defendant’s conviction or sentence.”

The attorneys before us emphasize that indigent defendants generally are unable to navigate the appellate process pro se. In view of that reality, the attorneys brought this action under 42 U. S. C. § 1983, to advance indigent defendants’ constitutional right to counsel’s aid in pursuing appeals from plea-based convictions.

“Ordinarily,” attorneys Fitzgerald and Vogler acknowledge, “one may not claim standing... to vindicate the constitutional rights of [a] third party.” Barrows v. Jackson, 346 U. S. 249, 255 (1953). The Court has recognized exceptions to the general rule, however, when certain circumstances combine: (1) “The litigant [has] suffered an ‘injury in fact,’... giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”; (2) “the litigant [has] a close relation to the third party”; and (3) “there [exists] some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (quoting Singleton v. Wulff, 428 U. S. 106, 112 (1976)). The first requirement is of a different order than the second and third, for whether a litigant meets the constitutional prescription of injury in fact determines whether his suit is “a case or controversy subject to a federal court’s Art. Ill jurisdiction.” Ibid. By contrast, the close relation and hindrance criteria are “prudential considerations,” Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984), “judge made rule[s] . . . fashion[ed] for our own governance,” id., at 972 (Stevens, J., concurring). Our precedent leaves scant room for doubt that attorneys Fitzgerald and Vogler have shown both injury in fact, and the requisite close relation to indigent defendants who seek the assistance of counsel to appeal from plea-based convictions. I conclude, as well, that those attorneys have demonstrated a formidable hindrance to the indigents’ ability to proceed without the aid of counsel.

As to injury in fact, attorneys Fitzgerald and Vogler alleged in their complaint that Mich. Comp. Laws Ann. § 770.3a would cause them direct economic loss because it will “reduce] the number of cases in which they could be appointed and paid as assigned appellate counsel.” App. 16a. This allegation is hardly debatable. The Michigan system for assigning appellate attorneys to indigent defendants operates on a strict rotation. With fewer cases to be assigned under the new statute, the pace of the rotation would slow, and Fitzgerald and Vogler, who are on the rosters for assignment, would earn less for representation of indigent appellants than they earned in years prior to the cutback on state-funded appeals.

In Singleton, 428 U. S. 106, two physicians challenged state restrictions imposed on funding for abortions. Eight Members of this Court determined that the physicians had adequately alleged concrete injury: “If the physicians prevailed] in their suit . . . they [would] then receive payment . . . [and t]he State (and Federal Government) [would] be out of pocket by the amount of the payments.” Id., at 113; see id., at 122-123 (Powell, J., concurring as to injury in fact). Inescapably, the same reasoning applies to attorneys Fitzgerald and Vogler. They have alleged their past, state-paid representation of indigent defendants in appeals from plea-based convictions, and their aim to continue such representation in the future. As in Singleton, they will suffer injury “concrete and particularized[,] . . . actual or imminent, not conjectural or hypothetical,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180 (2000), if Michigan’s statute holds sway. See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 177-178, and n. 5 (5th ed. 2003).

Nor, under our precedent, should attorneys Fitzgerald and Vogler encounter a “close relation” shoal. Our prior decisions do not warrant the distinction between an “existing” relationship and a “hypothetical” relationship that the Court advances today. Ante, at 131. See, e. g., Carey v. Population Services Int'l, 431 U. S. 678, 683 (1977) (corporate distributor of contraceptives could challenge state law limiting sale of its products, “not only in its own right but also on behalf of its potential customers” (emphasis added)); Griswold v. Connecticut, 381 U. S. 479, 481 (1965) (noting that in Pierce v. Society of Sisters, 268 U. S. 510 (1925), “the owners of private schools were entitled to assert the rights of potential pupils and their parents,” and in Barrows, “a white defendant... was allowed to raise ... the rights of prospective Negro purchasers” (emphases added)).

Without suggesting that the timing of a relationship is key, the Court’s decisions have focused on the character of the relationship between the litigant and the rightholder. See Munson, 467 U. S., at 973 (Stevens, J., concurring) (propriety of third-party standing depends on “the nature of the relationship”). Singleton, for example, acknowledged the significant bond between physician and patient. See 428 U. S., at 117 (plurality opinion) (“[Tjhe physician is uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against, [the abortion] decision.”). Similarly, this Court has twice recognized, in the third-party standing context, that the attorney-client relationship is of “special consequence.” See Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 623-624, n. 3 (1989); Department of Labor v. Triplett, 494 U. S. 715, 720 (1990). Moreover, the Court has found an adequate “relation” between litigants alleging third-party standing and those whose rights they seek to assert when nothing more than a buyer-seller connection was at stake. See Carey, 431 U. S., at 683; Craig v. Boren, 429 U. S. 190, 196 (1976).

Thus, as I see it, this case turns on the last of the three third-party standing inquiries, here, the existence of an impediment to the indigent defendants’ effective assertion of their own rights, through litigation. I note first that the Court has approached this requirement with a degree of elasticity. See id., at 216 (Burger, C. J., dissenting) (males between the ages of 18 and 21 who sought to purchase 3.2% beer faced no serious obstacle to asserting their own rights). The hindrance faced by a rightholder need only be “genuine,” not “insurmountable.” Singleton, 428 U. S., at 116-117 (plurality opinion); see also Munson, 467 U. S., at 956 (“Where practical obstacles prevent a party from asserting rights on behalf of itself . . . the Court has recognized [third-party standing].”). Even assuming a requirement with more starch than the Court has insisted upon in prior decisions, this case satisfies the “impediment” test.

To determine whether the indigent defendants are impeded from asserting their own rights, one must recognize the incapacities under which these defendants labor and the complexity of the issues their cases may entail. According to the Department of Justice, approximately eight out of ten state felony defendants use court-appointed lawyers. U. S. Dept, of Justice, Bureau of Justice Statistics, C. Harlow, Defense Counsel in Criminal Cases 1, 5 (Nov. 2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf (all Internet materials as visited Dec. 8, 2004, and available in Clerk of Court’s case file). Approximately 70% of indigent defendants represented by appointed counsel plead guilty, and 70% of those convicted are incarcerated. Id., at 6 (Tables 10-11). It is likely that many of these indigent defendants, in common with 68% of the state prison population, did not complete high school, U. S. Dept, of Justice, Bureau of Justice Statistics, C. Harlow, Education and Correctional Populations 1 (Jan. 2003), available at http://www.ojp.usdoj.gov/bjs/ pub/pdf/ecp.pdf, and many lack the most basic literacy skills, U. S. Dept, of Ed., National Center for Education Statistics, Literacy Behind Prison Walls xviii, 10,17 (Oct. 1994) (NCES 1994-102), available at http://nces.ed.gov/pubs94/94102.pdf. A Department of Education study found that about seven out of ten inmates fall in the lowest two out of five levels of literacy — marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article. Id., at 10, App. A (Interpreting the Literacy Scales). An inmate so handicapped surely does not possess the skill necessary to pursue a competent pro se appeal.

These indigent and poorly educated defendants face appeals from guilty pleas often no less complex than other appeals. An indigent defendant who pleads guilty may still raise on appeal

“constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary examination, preserved entrapment claims, mental competency claims, factual basis claims, claims that the state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective assistance of counsel.” People v. Bulger, 462 Mich. 495, 561, 614 N. W. 2d 103, 133-134 (2000) (Cavanagh, J., dissenting) (citations omitted).

The indigent defendant pursuing his own appeal must also navigate Michigan’s procedures for seeking leave to appeal after sentencing on a guilty plea. Michigan’s stated Rule requires a defendant to file an application for appeal within 21 days after entry of the judgment. Mich. Rule App. Proc. 7.205(A) (2004). The defendant must submit five copies of the application “stating the date and nature of the judgment or order appealed from; concisely reciting the appellant’s allegations of error and the relief sought; [and] setting forth a concise argument ... in support of the appellant’s position on each issue.” Rule 7.205(B)(1). The State Court Administrative Office has furnished a three-page form application accompanied by two pages of instructions for defendants seeking leave to appeal after sentencing on a guilty plea. But this form is unlikely to provide adequate aid to an indigent and poorly educated defendant. The form requires entry of such information as “charge code(s), MCL citation/PACC Code,” asks the applicant to state the issues and facts relevant to the appeal, and then requires the applicant to “state the law that supports your position and explain how the law applies to the facts of your case.” Application for Leave to Appeal After Sentencing on Plea of Guilty or Nolo Contendere, http://courts.michigan.gov/scao/ courtforms/appeals/cc405.pdf (rev. Oct. 2003). This last task would not be onerous for an applicant familiar with law school examinations, but it is a tall order for a defendant of marginal literacy.

The Court, agreeing with Judge Rogers’ dissent from the en banc Sixth Circuit decision, writes that recognizing third-party standing here would allow lawyers generally to assert standing to champion their potential clients’ rights. Ante, at 134, n. 5. For example, a medical malpractice attorney could challenge a tort reform statute on behalf of a future client or a Social Security lawyer could challenge new regulations. Ibid.; Tesmer v. Granholm, 333 F. 3d 683, 709-710 (CA6 2003). In such cases, however, in marked contrast to the instant case, the persons directly affected — malpractice plaintiffs or benefits claimants — would face no unusual obstacle in securing the aid of counsel to attack the disadvantageous statutory or regulatory change. There is no cause, therefore, to allow an attorney to challenge the benefit- or award-reducing provision in a suit brought in the attorney’s name. The party whose interests the provision directly impacts can instead mount the challenge with the aid of counsel.

This case is “unusual because it is the deprivation of counsel itself that prevents indigent defendants from protecting their right to counsel.” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 17. The challenged statute leaves indigent criminal defendants without the aid needed to gain access to the appellate forum and thus without a viable means to protect their rights. Cf. Evitts v. Lucey, 469 U. S. 387, 393 (1985) (“[T]he services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits.”).

The Court is “unpersuaded by the attorneys’ ‘hindrance’ argument,” ante, at 132, in the main, because it sees a clear path for Fitzgerald and Vogler: They could have “attend[ed] state court and assisted] [indigent defendants,]” ibid. Had the attorneys taken this course, hundreds, perhaps thousands, of criminal defendants would have gone uncounseled while the attorneys afforded assistance to a few individuals. In order to protect the rights of all indigent defendants, the attorneys sought prospective classwide relief to prevent the statute from taking effect. See Tr. of Oral Arg. 41 (“The problem was we had to file this litigation before the statute went into effect because once the statute went into effect, thousands of Michigan indigents would be denied the right to counsel every year and would suffer probably irreparable damage to their right to appeal.”).

This ease implicates none of the concerns underlying the Court’s prudential criteria. The general prohibition against third-party standing “ ‘frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy,’ and it assures the court that the issues before it will be concrete and sharply presented.” Munson, 467 U. S., at 955 (quoting United States v. Raines, 362 U. S. 17, 22 (1960); citation omitted). Attorneys Fitzgerald and Vogler have “properly... frame[d] the issues and presented] them with the necessary adversarial zeal,” 467 U. S., at 956, and whether the indigent defendants whose rights they assert are entitled to counsel is a question fully ripe for resolution.

The Court concludes that the principle of Younger v. Harris, 401 U. S. 37 (1971), “is an additional reason to deny the attorneys third-party standing.” Ante, at 133. Whether a federal court should abstain under Younger is, of course, distinct from whether a party has standing to sue. See 401 U. S., at 41-42 (dismissing three appellees on standing grounds before addressing the abstention question). Younger “[has] little force in the absence of a pending state proceeding.” Steffel v. Thompson, 415 U. S. 452, 462 (1974) (quoting Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972)). “When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.” 415 U. S., at 462; accord Doran v. Salem Inn, Inc., 422 U. S. 922, 930 (1975). Attorneys Fitzgerald and Vogler filed this suit before the Michigan statute took effect. At that time, no state criminal proceeding governed by the statute existed with which this suit could interfere.

In sum, this case presents an unusual if not unique case of defendants facing near-insurmountable practical obstacles to protecting their rights in the state forum: First, it is the deprivation of counsel itself that prevents indigent defendants, many of whom are likely to be unsophisticated and poorly educated, from protecting their rights; second, the substantive issues that such defendants could raise in an appeal are myriad and often complicated; and third, the procedural requirements for an appeal after a guilty plea are not altogether indigent-user friendly. The exposure of impecunious defendants to these access-to-appeal blockages in state court makes the need for this suit all the more compelling.

* * *

For the reasons stated, I would affirm the en banc Sixth Circuit decision that attorneys Fitzgerald and Vogler have standing to maintain the instant action and would proceed to the merits of the controversy.

       The statute limits appellate counsel for defendants who “plea[d] guilty, guilty but mentally ill, or nolo contendere.” Mich. Comp. Laws Ann. §770.3a(l) (West 2000). For simplicity, we shall refer only to defendants who plead guilty, although our analysis applies to all three situations.

       To satisfy Article III, a party must demonstrate an “injury in fact”; a causal connection between the injury and the conduct of which the party complains; and that it is “likely” a favorable decision will provide redress. Lujan v. Defenders of Wildlife, 504 U. S., at 560-561 (internal quotation marks omitted). In this case, the attorneys alleged “injury in fact” flows from their contention that the Michigan system “has reduced the number of cases in which they could be appointed and paid as assigned appellate counsel.” App. 16a, ¶ 35 (Complaint). This harm, they allege, would be remedied by declaratory and injunctive relief aimed at the system. Again, we assume, without deciding, that these allegations are sufficient. See Ruhrgas AG v. Marathon Oil Co., 526 U. S., at 585.

       The Court of Appeals suggested, however, that adverse Michigan precedent on the merits of the constitutional claim made any resort to the state courts futile and thus justified the attorneys’ sally into federal court. 333 F. 3d, at 695. But forum shopping of this kind is not a basis for third-party standing. See, e. g., Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624, n. 3 (1989).

       The mischief that resulted from allowing the attorneys to circumvent Younger is telling. By the time the Michigan Supreme Court had a chance to rule on even the prestatutory practice, see People v. Bulger, 462 Mich. 495, 614 N. W. 2d 103 (July 18, 2000) (holding the practice constitutional), the Federal District Cofirt had ruled the prestatutory practice and the impending statute itself unconstitutional. 114 F. Supp. 2d 603, 622 (ED Mich., Mar. 31, 2000). It also had issued an injunction against all Michigan judges, instructing them to appoint counsel (regardless of what their own Supreme Court said). 114 F. Supp. 2d 622 (ED Mich., June 30, 2000). Thus, the Federal District Court effectively trumped the Michigan Supreme Court’s ruling; caused unnecessary conflict between the federal and state courts; and caused confusion among Michigan judges attempting to implement these conflicting commands.

       As Judge Rogers explained, the lawyer would have to make a credible claim that a challenged regulation would affect his income to satisfy Article III; after that, however, the possibilities would be endless. 333 F. 3d, at 709. A medical malpractice attorney could assert an abstract, generalized challenge to tort reform statutes by asserting the rights of some hypothetical malpractice victim (or victims) who might sue. Id., at 710. An attorney specializing in Social Security cases could challenge implementation of a new regulation by asserting the rights of some hypothetical claimant (or claimants). Ibid. And so on.

       See also Tyler v. Judges of Court of Registration, 179 U. S. 405, 406-407 (1900); Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 220 (1903); Owings v. Norwood’s Lessee, 5 Cranch 344, 348 (1809) (Marshall, C. J.); In re Wellington, 33 Mass. 87, 96 (1834) (Shaw, C. J.); Barrows v. Jackson, 346 U. S. 249, 264-266, and n. 6 (1953) (Vinson, C. J., dissenting).

       True, in several cases in which third-party standing was upheld on the basis of economic injury, the law in question proscribed conduct in which the challenger sought to engage. See, e. g., Craig v. Boren, 429 U. S. 190, 192-194 (1976) (beer vendor prohibited from selling 3.2% beer to males aged 18-21). Our decisions confirm, however, that a plaintiff’s exposure to an enforcement action is not essential to an injury-in-fact determination. See Singleton v. Wulff, 428 U. S. 106 (1976); Pierce v. Society of Sisters, 268 U. S. 510 (1925).

       There can be little doubt that the plurality in Singleton would have recognized third-party standing even if the physicians had just opened their clinic at the time they commenced suit.

        Conn v. Gabbert, 526 U. S. 286 (1999), see ante, at 130, is not instructive. There, the plaintiff-attorney failed to assert his own injury in fact, 526 U. S., at 289-292, and thus, a fortiori, could not assert third-party standing, id., at 292-293.

       The rare ease of an unusually effective pro se defendant is the exception that proves the rule: The Court identifies three Michigan defendants who pursued right-to-counsel claims pro se. Ante, at 132. The fact that a handful of pro se defendants has brought claims shows neither that the run-of-the-mine defendant can successfully navigate state procedures nor that he can effectively represent himself on the merits.

         Considerations of economy — the parties have fully briefed and argued this case — also favor reaching the merits.

       I agree with the Court that Younger would force the indigent defendants to pursue their claims in state court, as Younger has a stricter impediment requirement than the third-party standing doctrine. Younger v. Harris, 401 U. S. 37, 53 (1971) (requiring “extraordinary circumstances” before allowing federal intervention).


source: Caselaw Access Project

author: Justice Scalia

license: Public Domain

text:
    DEVENPECK et al. v. ALFORD
    No. 03-710.
    Argued November 8, 2004
    Decided December 13, 2004

      Scalia, J., delivered the opinion of the Court, in which all other Members joined, except Rehnquist, C. J., who took no part in the decision of the case.

      Maureen A. Hart, Senior Assistant Attorney General of Washington, argued the cause for petitioners. With her on the briefs were Christine O. Gregoire, Attorney General, Robert K. Costello, Deputy Attorney General, William Berg-gren Collins, Senior Assistant Attorney General, Michael P. Lynch, and Eric A. Mentzer, Assistant Attorney General.

      Deputy Attorney General Comey argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Clement, former Solicitor General Olson, Assistant Attorneys General Keisler and Wray, Deputy Solicitor General Dreeben, John P. Elwood, Joel M. Gershowitz, and Richard A. Olderman.

      R. Stuart Phillips argued the cause and filed a brief for respondent.

       Briefs of amici curiae urging reversal were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Janet E. Neeley, Supervising Deputy Attorney General, and Lee E. Seale and Patrick J. Whalen, Deputy Attorneys General, by Anabelle Rodriguez, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiána, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Gerald J. Pappert of Pennsylvania, Henry McMaster of South Carolina, and Mark L. Shurtleff of Utah; for the Center for the Community Interest by Miguel A. Estrada and Thomas

        H. Dupree, Jr.; and for the National League of Cities et al. by Richard Ruda and Andrew J. Pincus.

        Jonathan D. Hacker and Pamela Harris filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not “closely related” to the offense stated by the arresting officer at the time of arrest.

I

A

On the night of November 22,1997, a disabled automobile and its passengers were stranded on the shoulder of State Route 16, a divided highway, in Pierce County, Washington. Alford v. Haner, 333 F. 3d 972, 974 (CA9 2003); App. 94, 98. Respondent Jerome Alford pulled his car off the road behind the disabled vehicle, activating his “wig-wag” headlights (which flash the left and right lights alternately). As he pulled off the road, Officer Joi Haner of the Washington State Patrol, one of the two petitioners here, passed the disabled car from the opposite direction. 333 F. 3d, at 974. He turned around to check on the motorists at the first opportunity, and when he arrived, respondent, who had begun helping the motorists change a flat tire, hurried back to his car and drove away. Ibid. The stranded motorists asked Haner if respondent was a “cop”; they said that respondent’s statements, and his flashing, wig-wag headlights, had given them that impression. Ibid.; App. 96. They also informed Haner that as respondent hurried off he left his flashlight behind. Id., at 97.

On the basis of this information, Haner radioed his supervisor, Sergeant Gerald Devenpeck, the other petitioner here, that he was concerned respondent was an “impersonator” or “wannabe cop.” Id., at 97-98. He pursued respondent’s vehicle and pulled it over. 333 F. 3d, at 975. Through the passenger-side window, Haner observed that respondent was listening to the Kitsap County Sheriff’s Office police frequency on a special radio, and that handcuffs and a hand-held police scanner were in the car. Ibid. These facts bolstered Haner’s suspicion that respondent was impersonating a police officer. App. 106, 107. Haner thought, moreover, that respondent seemed untruthful and evasive: He told Haner that he had worked previously for the “State Patrol,” but under further questioning, claimed instead to have worked in law enforcement in Texas and at a shipyard. Ibid. He claimed that his flashing headlights were part of a recently installed car-alarm system, and acted as though he was unable to trigger the system; but during these feigned efforts Haner noticed that respondent avoided pushing a button near his knee, which Haner suspected (correctly) to be the switch for the lights. 333 F. 3d, at 975; App. 108.

Sergeant Devenpeck arrived on the scene a short time later. After Haner informed Devenpeck of the basis for his belief that respondent had been impersonating a pólice officer, id., at 110, Devenpeck approached respondent’s vehicle and inquired about the wig-wag headlights, 333 F. 3d, at 975. As before, respondent said that the headlights were part of his alarm system and that he did not know how to activate them. App. 52, 138-139. Like Haner, Devenpeck was skeptical of respondent’s answers. In the course of his questioning, Devenpeck noticed a tape recorder on the passenger seat of respondent’s car, with the play and record buttons depressed. 333 F. 3d, at 975. He ordered Haner to remove respondent from the car, played the recorded tape, and found that respondent had been recording his conversations with the officers. Devenpeck informed respondent that he was under arrest for a violation of the Washington Privacy Act, Wash. Rev. Code §9.73.030 (1994). 333 F. 3d, at 975; App. 144-145. Respondent protested that a State Court-of-Appeals decision, a copy of which he claimed was in his glove compartment, permitted him to record roadside conversations with police officers. 333 F. 3d, at 975; App. 42, 67-68. Devenpeck returned to his car, reviewed the language of the Privacy Act, and attempted unsuccessfully to reach a prosecutor to confirm that the arrest was lawful. Id., at 151-154. Believing that the text of the Privacy Act confirmed that respondent’s recording was unlawful, he directed Officer Haner to take respondent to jail. Id., at 154.

A short time later; Devenpeck reached by phone Mark Lindquist, a deputy county prosecutor, to whom he recounted the events leading to • respondent’s arrest. 333 F. 3d, at 975. The two discussed a series of possible criminal offenses, including violation of the Privacy Act, impersonating a police officer, and making a false representation to an officer. App. 177-178. Lindquist advised that there was “clearly probable cause,” id., at 179, and suggested that respondent also be charged with “obstructing a public servant” “based on the runaround [he] gave [Devenpeck],” id., at 157. Devenpeck rejected this suggestion, explaining that the State Patrol does not, as a matter of policy, “stack charges” against an arrestee. Id., at 157-158.

At booking, Haner charged respondent with violating the State Privacy Act, id., at 32-33, and issued a ticket to respondent for his flashing headlights under Wash. Rev. Code §46.37.280(3) (1994), App. 24-25. Under state law, respondent could be detained on the latter offense only for the period of time “reasonably necessary” to issue a citation. §46.64.015. The state trial court subsequently dismissed both charges. App. 10, 29.

B

Respondent filed suit against petitioners in Federal District Court. He asserted a federal cause of action under Rev. Stat. § 1979, 42 U. S. C. § 1983, and a state cause of action for unlawful arrest and imprisonment, both claims resting upon the allegation that petitioners arrested him without probable cause in violation of the Fourth and Fourteenth Amendments. 333 F. 3d, at 975. The District Court denied petitioners’ motion for summary judgment on grounds of qualified immunity, and the case proceeded to trial. Alford v. Washington State Police, Case No. C99-5586RJB (WD Wash., Nov. 30, 2000), App. to Pet. for Cert. 40a. The jury was instructed that, for respondent to prevail on either his federal- or state-law claim, he must demonstrate that petitioners arrested him without probable cause, App. 199-201; and that probable cause exists “if the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a prudent person to conclude that the suspect has committed, is committing, or was about to commit a crime,” id., at 201. The jury was also instructed that, at the time of respondent’s arrest, a State Court-of-Appeals decision, State v. Flora, 68 Wash. App. 802, 845 P. 2d 1355 (1992), had clearly established that respondent’s taping of petitioners was not a crime, App. 202. And the jury was directed that it must find for petitioners if a reasonable officer in the same circumstances would have believed respondent’s detention was lawful. Id., at 200. Respondent did not object to any of these instructions. The jury returned a unanimous verdict in favor of petitioners. 333 F. 3d, at 975. The District Court denied respondent’s motion for judgment as a matter of law or, in the alternative, a new trial, and respondent appealed. Ibid.; App. to Pet. for Cert. 25a.

A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding “no evidence to support the jury’s verdict,” 333 F. 3d, at 975. The majority concluded that petitioners could not have had probable cause to arrest because they cited only the Privacy Act charge and “[t]ape recording officers conducting a traffic stop is not a crime in Washington.” Id., at 976. The majority rejected petitioners’ claim that probable cause existed to arrest respondent for the offenses of impersonating a law-enforcement officer, Wash. Rev. Code § 9A.60.040(3) (1994), and obstructing a law-enforcement officer, §9A.76.020, because, it said, those offenses were not “closely related” to the offense invoked by Devenpeck as he took respondent into custody, 333 F. 3d, at 976-977. The majority also held that there was no evidence to support petitioners’ claim of qualified immunity, since, given the Washington Court of Appeals’ decision in Flora, “no objectively.reasonable officer could have concluded that arresting [respondent] for taping the traffic stop was permissible,” 333 F. 3d, at 979. Judge Gould dissented on the ground that it was objectively reasonable for petitioners to believe that respondent had violated the Privacy Act. See id., at 980. We granted certiorari. 541 U. S. 987 (2004).

HH HH

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. See United States v. Watson, 423 U. S. 411, 417-424 (1976); Brinegar v. United States, 338 U. S. 160, 175-176 (1949). Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. Maryland v. Pringle, 540 U. S. 366, 371 (2003). In this case, the Court of Appeals held that the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be “closely related” to the offense that the officer invoked. 333 F. 3d, at 976. We find no basis in precedent or reason for this limitation.

Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. See Whren v. United States, 517 U. S. 806, 812-813 (1996) (reviewing cases); Arkansas v. Sullivan, 532 U. S. 769 (2001) (per curiam). That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, “ ‘the fact that the officer does not have the state of mind which is hypothe-cated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’” Whren, supra, at 813 (quoting Scott v. United States, 436 U. S. 128, 138 (1978)). “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren, supra, at 814. “[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton v. California, 496 U. S. 128, 138 (1990).

The rule that the. offense establishing probable cause must be “closely related” to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest is inconsistent with this precedent. Such a rule makes the lawfulness of an arrest turn upon the motivation of the arresting officer — eliminating, as validating probable cause, facts that played no part in the officer’s expressed subjective reason for making the arrest, and offenses that are not “closely related” to that subjective reason. See, e. g., Sheehy v. Plymouth, 191 F. 3d 15, 20 (CA1 1999); Trejo v. Perez, 693 F. 2d 482, 485-486 (CA5 1982). This means that the constitutionality of an arrest under a given set of known facts will “vary from place to place and from time to time,” Whren, supra, at 815, depending on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which, probable cause exists. An arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not. We see no reason to ascribe to the Fourth Amendment such arbitrarily variable protection.

Those who support the “closely related offense” rule say that, although it is aimed at rooting out the subjective vice of arrests made for the wrong reason, it does so by objective means — that is, by reference to the arresting officer’s statement of his reason. The same argument was made in Whren, supra, in defense of the proposed rule that a traffic stop can be declared invalid for malicious motivation when it is justified only by an offense which standard police practice does not make the basis for a stop. That rule, it was said, “attempt[s] to root out subjective vices through objective means,” id., at 814. We rejected the argument there, and we reject it again here. Subjective intent of the arresting officer, however it is determined (and of course subjective intent is always determined by objective means), is simply no basis for invalidating an arrest. Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest.

Finally, the “closely related offense” rule is condemned by its perverse consequences. While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required. Hence, the predictable consequence of a rule limiting the probable-cause inquiry to offenses closely related to (and supported by the same facts as) those identified by the arresting officer is not, as respondent contends, that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather that officers will cease providing reasons for arrest. And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist.

The facts of this case exemplify the arbitrary consequences of a “closely related offense” rule. Officer Haner’s initial stop of respondent was motivated entirely by the suspicion that he was impersonating a police officer. App. 106. Before pulling respondent over, Haner indicated by radio that this was his concern; during the stop, Haner asked respondent whether he was actively employed in law enforcement and why his car had wig-wag headlights; and when Sergeant Devenpeck arrived, Haner told him why he thought respondent was a “wannabe cop,” id., at 98. In addition, in the course of interrogating respondent, both officers became convinced that he was not answering their questions truthfully and, with respect to the wig-wag headlights, that he was affirmatively trying to mislead them. Only after these suspicions had developed did Devenpeck discover the taping, place respondent under arrest, and offer the Privacy Act as the reason. Because of the “closely related offense” rule, Devenpeck’s actions render irrelevant both Haner’s developed suspicions that respondent was impersonating a police officer and the officers’ shared belief that respondent obstructed their investigation. The outcome under the “closely related offense” rule might well have been different if Haner, rather than Devenpeck, had made the arrest, on the stated basis of his suspicions; if Devenpeck had not abided the county’s policy against stacking charges; or if either officer had made the arrest without stating the grounds. We have consistently rejected a conception of the Fourth Amendment that would produce such haphazard results. See Whren, 517 U. S., at 815.

* * *

Respondent contended below that petitioners lacked probable cause to arrest him for obstructing a law-enforcement officer or for impersonating a law-enforcement officer. Because the Court of Appeals held that those offenses were legally irrelevant, it did not decide the question. We decline to engage in this inquiry for the first time here. Accordingly, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

The Chief Justice took no part in the decision of this case.

       The relevant provision of the Washington Privacy Act states:
      “Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any . . . [p]rivate conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.” Wash. Rev. Code § 9.78.030(1)(b) (1994).

       At least one Court of Appeals has adopted a variation of the “closely related offense” rule which looks not to the offense stated by the officer at the time of arrest, but to the offense given by the officer at booking. See Gassner v. Garland, 864 F. 2d 394, 398 (CA5 1989); but see Sheehy v.
        Plymouth, 191 F. 3d 15, 20 (CA1 1999) (holding that an arrest cannot be justified by an offense given at booking when the offense asserted by the officer at the time of arrest was not closely related). Most of our discussion in this opinion, and our conclusion of invalidity, applies to this variation as well.

       Even absent a requirement that an individual be informed of the reason for arrest when he is taken into custody, he will not be left to wonder for long. “[Pjersons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” County of Riverside v. McLaughlin, 500 U. S. 44, 53 (1991).


author: Justice Thomas Justice Ginsburg,

text:
    COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
    No. 02-1192.
    Argued October 6, 2004
    Decided December 13, 2004

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 171.

      William Bradford Reynolds argued the cause for petitioner. With him on the briefs were Lisa K. Hsiao, Dale E. Stephenson, and Allen A. Kacenjar.

      Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Hungar, Deputy Assistant Attorney General Clark, and Paul S. Weiland.

      Richard O. Faulk argued the cause for respondent. With him on the brief were Cynthia J. Bishop, Jeffrey M. Gaba, Walter Dellinger, and Pamela Harris

       Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Robert H. Easton, Assistant Solicitor General, and Peter H. Lehner, Karen R. Kaufmann, and Gordon J. Johnson, Assistant Attorneys General, by Anabelle Rodriguez, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Lisa Madigan of Illinois, Charles C. Foti, Jr., of Louisiana, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Brian Sandoval of Nevada, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Gerald J. Pappert of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Paul G. Summers of Tennessee, Christine O. Gregoire of Washington, Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; for Atlantic Richfield Co. et al. by Joel M. Gross and Albert M. Cohen; for ConocoPhillips Co. et al. by Richard P Bress, John McGahren, David H. Becker, and David L. Mulliken; for Lockheed Martin Corp. by Miguel A. Estrada, Andrew S. Tulumello, and James R. Buckley; and for the Superfund Settlements Project et al. by Michael W. Steinberg, Harry M. Ng, Ralph J. Colleli, Jr., Kenneth R. Meade, William R. Weissman, and Paul D. Ackerman.

   Justice Thomas

delivered the opinion of the Court.

Section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) allows persons who have undertaken efforts to clean up properties contaminated by hazardous substances to seek contribution from other parties liable under CERCLA. Section 113(f)(1) specifies that a party may obtain contribution “during or following any civil action” under CERCLA §106 or § 107(a). The issue we must decide is whether a private party who has not been sued under § 106 or § 107(a) may nevertheless obtain contribution under § 113(f)(1) from other liable parties. We hold that it may not.

I

Under CERCLA, 94 Stat. 2767, the Federal Government may clean up a contaminated area itself, see § 104, or it may compel responsible parties to perform the cleanup, see § 106(a). See Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994). In either case, the Government may re-* cover its response costs under § 107, 42 U. S. C. § 9607 (2000 ed. and Supp. I), the “cost recovery” section of CERCLA. Section 107(a) lists four classes of potentially responsible persons (PRPs) and provides that they “shall be liable” for, among other things, “all costs of removal or remedial action incurred by the United States Government... not inconsistent with the national contingency plan.” § 107(a)(4)(A). Section 107(a) further provides that PRPs shall be liable for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” § 107(a)(4)(B).

After CERCLA’s enactment in 1980, litigation arose over whether § 107, in addition to allowing the Government and certain private parties to recover costs from PRPs, also allowed a PRP that had incurred response costs to recover costs from other PRPs. More specifically, the question was whether a private party that had incurred response costs, but that had done so voluntarily and was not itself subject to suit, had a cause of action for cost recovery against other PRPs. Various courts held that § 107(a)(4)(B) and its predecessors authorized such a cause of action. See, e. g., Wickland Oil Terminals v. Asarco, Inc., 792 F. 2d 887, 890-892 (CA9 1986); Walls v. Waste Resource Corp., 761 F. 2d 311, 317-318 (CA6 1985); Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1140-1143 (ED Pa. 1982).

After CERCLA’s passage, litigation also ensued over the separate question whether a private entity that had been sued in a cost recovery action (by the Government or by another PRP) could obtain contribution from other PRPs. As originally enacted in 1980, CERCLA contained no provision expressly providing for a right of action for contribution. A number of District Courts nonetheless held that, although CERCLA did not mention the word “contribution,” such a right arose either impliedly from provisions of the statute, or as a matter of federal common law. See, e. g., United States v. New Castle County, 642 F. Supp. 1258, 1263-1269 (Del. 1986) (contribution right arises under federal common law); Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1486-1493 (Colo. 1985) (same); Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (ED Mo. 1985) (contribution right is implied from § 107(e)(2)). That conclusion was debatable in light of two decisions of this Court that refused to recognize implied or common-law rights to contribution in other federal statutes. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 638-647 (1981) (refusing to recognize implied or common-law right to contribution in the Sherman Act or the Clayton Act); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 90-99 (1981) (refusing to recognize implied or common-law right to contribution in the Equal Pay Act of 1963 or Title VII of the Civil Rights Act of 1964).

Congress subsequently amended CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, to provide an express cause of action for contribution, codified as CERCLA § 113(f)(1):

“Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.” Id., at 1647, as codified in 42 U. S. C. § 9613(f)(1).

SARA also created a separate express right of contribution, § 113(f)(3)(B), for “[a] person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.” In short, after SARA, CERCLA provided for a right to cost recovery in certain circumstances, § 107(a), and separate rights to contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).

II

This case concerns four contaminated aircraft engine maintenance sites in Texas. Cooper Industries, Inc., owned and operated those sites until 1981, when it sold them to Aviail Services, Inc. Aviall operated the four sites for a number of years. Ultimately, Aviall discovered that both it and Cooper had contaminated the facilities when petroleum and other hazardous substances leaked into the ground and ground water through underground storage tanks and spills.

Aviall notified the Texas Natural Resource Conservation Commission (Commission) of the contamination. The Commission informed Aviall that it was violating state environmental laws, directed Aviall to clean up the site, and threatened to pursue an enforcement action if Aviall failed to undertake remediation. Neither the Commission nor the EPA, however, took judicial or administrative measures to compel cleanup.

Aviall cleaned up the properties under the State’s supervision, beginning in 1984. Aviall sold the properties to a third party in 1995 and 1996, but remains contractually responsible for the cleanup. Aviall has incurred approximately $5 million in cleanup costs; the total costs may be even greater. In August 1997, Aviall filed this action against Cooper in the United States District Court for the Northern District of Texas, seeking to recover cleanup costs. The original complaint asserted a claim for cost recovery under CERCLA § 107(a), a separate claim for contribution under CERCLA § 113(f)(1), and state-law claims. Aviall later amended the complaint, combining its two CERCLA claims into a single, joint CERCLA claim. That claim alleged that, pursuant to § 113(f)(1), Aviall was entitled to seek contribution from Cooper, as a PRP under § 107(a), for response costs and other liability Aviall incurred in connection with the Texas facilities. Aviall continued to assert state-law claims as well.

Both parties moved for summary judgment, and the District Court granted Cooper’s motion. The court held that Aviall, having abandoned its § 107 claim, sought contribution only under § 113(f)(1). The court held that § 113(f)(1) relief was unavailable to Aviall because it had not been sued under CERCLA § 106 or § 107. Having dismissed Aviall’s federal claim, the court declined to exercise jurisdiction over the state-law claims.

A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 263 F. 3d 134 (2001). The majority, relying principally on the “during or. following” language in the first sentence of § 113(f)(1), held that “a PRP seeking contribution from other PRPs under § 113(f)(1) must have a pending or adjudged § 106 administrative order or § 107(a) cost recovery action against it.” Id., at 145. The dissent reasoned that the final sentence of § 113(f)(1), the saving clause, clarified that the federal common-law right to contribution survived the enactment of § 113(f)(1), even absent a §106 or § 107(a) civil action. Id., at 148-150 (opinion of Wiener, J.).

On rehearing en banc, the Fifth Circuit reversed by a divided vote, holding that § 113(f)(1) allows a PRP to obtain contribution from other PRPs regardless of whether the PRP has been sued under §106 or §107. 312 F. 3d 677 (2002). The court held that “[sjection 113(f)(1) authorizes suits against PRPs in both its first and last sentence^] which states without qualification that ‘nothing’ in the section shall ‘diminish’ any person’s right to bring a contribution action in the absence of a section 106 or section 107(a) action.” Id., at 681. The court reasoned in part that “may” in § 113(f)(1) did not mean “may only.” Id., at 686-687. Three members of the en banc court dissented for essentially the reasons given by the panel majority. Id., at 691-693 (opinion of Garza, J.). We granted certiorari, 540 U. S. 1099 (2004), and now reverse.

Ill

A

Section 113(f)(1) does not authorize Aviall’s suit. The first sentence, the enabling clause that establishes the right of contribution, provides: “Any person may seek contribution . . . during or following any civil action under section 9606 of this title or under section 9607(a) of this title,” 42 U. S. C. § 9613(f)(1) (emphasis added). The natural meaning of this sentence is that contribution may only be sought subject to the specified conditions, namely, “during or following” a specified civil action.

Aviall answers that “may” should be read permissively, such that “during or following” a civil action is one, but not the exclusive, instance in which a person may seek contribution. We disagree. First, as just noted, the natural meaning of “may” in the context of the enabling clause is that it authorizes certain contribution actions — ones that satisfy the subsequent specified condition — and no others.

Second, and relatedly, if § 113(f)(1) were read to authorize contribution actions at any time, regardless of the existence of a § 106 or § 107(a) civil action, then Congress need not have included the explicit “during or following” condition. In other words, Aviall’s reading would render part of the statute entirely superfluous, something we are loath to do. See, e. g., Hibbs v. Winn, 542 U. S. 88, 101 (2004). Likewise, if § 113(f)(1) authorizes contribution actions at any time, § 113(f)(3)(B), which permits contribution actions after settlement, is equally superfluous. There is no reason why Congress would bother to specify conditions under which a person may bring a contribution claim, and at the same time allow contribution actions absent those conditions.

The last sentence of § 113(f)(1), the saving clause, does not change our conclusion. That sentence provides: “Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.” 42 U. S. C. § 9613(f)(1). The sole function of the sentence is to clarify that § 113(f)(1) does nothing to “diminish” any cause(s) of action for contribution that may exist independently of § 113(f)(1). In other words, the sentence rebuts any presumption that the express right of contribution provided by the enabling clause is the exclusive cause of action for contribution available to a PRP. The sentence, however, does not itself establish a cause of action; nor does it expand § 113(f)(1) to authorize contribution actions not brought “during or following” a § 106 or § 107(a) civil action; nor does it specify what causes of action for contribution, if any, exist outside § 113(f)(1). Reading the saving clause to authorize § 113(f)(1) contribution actions not just “during or following” a civil action, but also before such an action, would again violate the settled rule that we must, if possible, construe a statute to give every word some operative effect. See United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992).

Our conclusion follows not simply from § 113(f)(1) itself, but also from the whole of § 113. As noted above, § 113 provides two express avenues for contribution: § 113(f)(1) (“during or following” specified civil actions) and § 113(f)(3)(B) (after an administrative or judicially approved settlement that resolves liability to the United States or a State). Section 113(g)(3) then provides two corresponding 3-year limitations periods for contribution actions, one beginning at the date of judgment, § 113(g)(3)(A), and one beginning at the date of settlement, § 113(g)(3)(B). Notably absent from § 113(g)(3) is any provision for starting the limitations period if a judgment or settlement never occurs, as is the case with a purely voluntary cleanup. The lack of such a provision supports the conclusion that, to assert a contribution claim under § 113(f), a party must satisfy the conditions of either § 113(f)(1) or § 113(f)(3)(B).

Each side insists that the purpose of CERCLA bolsters its reading of § 113(f)(1). Given the clear meaning of the text, there is no need to resolve this dispute or to consult the purpose of CERCLA at all. As we have said: “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” On- cale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998). Section 113(f)(1), 100 Stat. 1647, authorizes contribution claims only “during or following” a civil action under § 106 or § 107(a), and it is undisputed that Aviall has never been subject to such an action. Aviall therefore has no § 113(f)(1) claim.

B

Aviall and amicus Lockheed Martin contend that, in the alternative to an action for contribution under § 113(f)(1), Aviall may recover costs under § 107(a)(4)(B) even though it is a PRP. The dissent would have us so hold. We decline to address the issue. Neither the District Court, nor the Fifth Circuit panel, nor the Fifth Circuit sitting en banc considered AvialPs § 107 claim. In fact, as noted above, Aviall included separate § 107 and § 113 claims in its original complaint, but then asserted a “combined” § 107/§ 113 claim in its amended complaint. The District Court took this consolidated claim to mean that Aviall was relying on § 107 “not as an independent cause of action,” but only “to the extent necessary to maintain a viable § 113(f)(1) contribution claim.” Civ. Action No. 3:97-CV-1926-D (ND Tex., Jan. 13, 2000), App. to Pet. for Cert. 94a, n. 2. Consequently the court saw no need to address any freestanding § 107 claim. The Fifth Circuit panel likewise concluded that Aviall no longer advanced a stand-alone §107 claim. 263 F. 3d, at 137, n. 2. The en banc court found it unnecessary to decide whether Aviall had waived the § 107 claim, because it held that Aviall could rely instead on § 113. 312 F. 3d, at 685, n. 15. Thus, the court did not address the waiver issue, let alone the merits of the § 107 claim.

“We ordinarily do not decide in the first instance issues not decided below.” Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 109 (2001) (per curiam) (internal quotation marks omitted). Although we have deviated from this rule in exceptional circumstances, United States v. Mendenhall, 446 U. S. 544, 551-552, n. 5 (1980), the circumstances here cut against resolving the §107 claim. Both the question whether Aviall has waived this claim and the underlying § 107 question (if it is not waived) may depend in part on the relationship between §§ 107 and 113. That relationship is a significant issue in its own right. It is also well beyond the scope of the briefing and, indeed, the question presented, which asks simply whether a private party “may bring an action seeking contribution pursuant to CERCLA Section 113(f)(1).” Pet. for Cert. i. The § 107 claim and the preliminary waiver question merit full consideration by the courts below.

Furthermore, the parties cite numerous decisions of the Courts of Appeals as holding that a private party that is itself a PRP may not pursue a § 107(a) action against other PRPs for joint and several liability. See, e. g., Bedford Affiliates v. Sills, 156 F. 3d 416, 423-424 (CA2 1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F. 3d 344, 349-356 (CA6 1998); Pneumo Abex Corp. v. High Point, T. & D. R. Co., 142 F. 3d 769, 776 (CA4 1998); Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301-1306 (CA9 1997); New Castle County v. Halliburton NUS Corp., 111 F. 3d 1116, 1120-1124 (CA3 1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F. 3d 1489, 1496, and n. 7 (CA11 1996); United States v. Colorado & E. R. Co., 50 F. 3d 1530, 1534-1536 (CA10 1995); United Technologies Corp. v. Browning-Ferris Industries, 33 F. 3d 96, 98-103 (CA1 1994). To hold here that Aviall may pursue a § 107 action, we would have to consider whether these decisions are correct, an issue that Aviall has flagged but not briefed. And we might have to consider other issues, also not briefed, such as whether Aviall, which seeks to recover the share of its cleanup costs fairly chargeable to Cooper, may pursue a § 107 cost recovery action for some form of liability other than joint and several. We think it more prudent to withhold judgment on these matters.

In view of the importance of the § 107 issue and the absence of briefing and decisions by the courts below, we are not prepared — as the dissent would have it — to resolve the § 107 question solely on the basis of dictum in Key Tronic. We held there that certain attorney’s fees were not “ ‘necessary costs of response’ ” within the meaning of § 107(a)(4)(B). 511 U. S., at 818-821. But we did not address, the relevance, if any, of Key Tronic’s status as a PRP or confront the relationship between §§ 107 and 113. In discussing § 107, we did not even classify it precisely as a right of cost recovery or a right of contribution, as the dissent’s descriptions of the decision reveal. Post, at 172 (opinion of Ginsburg, J.) (describing Key Tronic as recognizing a right to “ ‘seek recovery of cleanup costs’” (quoting 511 U. S., at 818), but in the following paragraph saying that Key Tronic identified a “right to contribution”). “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U. S. 507, 511 (1925). Aviall itself recognizes the need for fuller examination of the § 107 claim; it has simply requested that we remand for consideration of that claim, not that we resolve the claim in the first instance.

C

In addition to leaving open whether Aviall may seek cost recovery under § 107, Part III-B, supra, we decline to decide whether Aviall has an implied right to contribution under § 107. Portions of the Fifth Circuit’s opinion below might be taken to endorse the latter cause of action, 312 F. 3d, at 687; others appear to reserve the question whether such a cause of action exists, id., at 685, n. 15. To the extent that Aviall chooses to frame its § 107 claim on remand as an implied right of contribution (as opposed to a right of cost recovery), we note that this Court has visited the subject of implied rights of contribution before. See Texas Industries, 451 U. S., at 638-647; Northwest Airlines, 451 U. S., at 90-99. We also note that, in enacting § 113(f)(1), Congress explicitly recognized a particular set (claims “during or following” the specified civil actions) of the contribution rights previously implied by courts from provisions of CERCLA and the common law. Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19 (1979). Nonetheless, we need not and do not decide today whether any judicially implied right of contribution survived the passage of SARA.

* * *

We hold only that § 113(f)(1) does not support Aviall’s suit. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Ginsburg,

with whom Justice Stevens joins,

dissenting.

Aviall Services, Inc., purchased from Cooper Industries, Inc., property that was contaminated with hazardous substances. Shortly after the purchase, the Texas Natural Resource Conservation Commission notified Aviall that it would institute enforcement action if Aviall failed to remediate the property. Aviall promptly cleaned up the site and now seeks reimbursement from Cooper. In my view, the Court unnecessarily defers decision on Aviall’s entitlement to recover cleanup costs from Cooper.

In Key Tronic Corp. v. United States, 511 U. S. 809, 818 (1994), all Members of this Court agreed that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. S. C. §9607, “unquestionably provides a cause of action for [potentially responsible persons (PRPs)] to seek recovery of cleanup costs.” The Court rested that determination squarely ¿nd solely on § 107(a)(4)(B), which allows any person who has incurred costs for cleaning up a hazardous waste site to recover all or a portion of those costs from any other person liable under CERCLA.

The Key Tronic Court divided, however, on the question whether the right to contribution is implicit in § 107(a)’s text, as the majority determined, or whether § 107(a) expressly confers the right, as the dissenters urged. The majority stated: Section 107 “implies — but does not expressly command — that [a PRP] may have a claim for contribution against those treated as joint tortfeasors.” 511 U. S., at 818, and n. 11 (emphasis added). The dissent maintained: “Section 107(a)(4)(B) states, as clearly as can be, that ‘[c]overed persons ... shall be liable for... necessary costs of response incurred by any other person.’ Surely to say that A shall be liable to B is the express creation of a right of action.” Id., at 822. But no Justice expressed the slightest doubt that § 107 indeed did enable a PRP to sue other covered persons for reimbursement, in whole or part* of cleanup costs the PRP legitimately incurred.

In its original complaint, Aviall identified §107 as the federal-law basis for an independent cost-recovery claim against Cooper, and §113 as the basis for a contribution claim. App. 8A, 16A-17A. In amended pleadings, Aviall alleged both §§ 107 and 113 as the federal underpinning for its contribution claim. Id., at 27A, 48A. Aviall’s use of §§113 and 107 in tandem to assert a contribution claim conformed its pleading to then-governing Fifth Circuit precedent, which held that a CERCLA contribution action arises through the joint operation of §§ 107(a) and 113(f)(1). See Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924 (2000) (“[Wjhile section 113(f) is the vehicle for bringing a contribution action, it does not create a new cause of action or create any new liabilities. Rather, it is a mechanism for apportioning costs that are recoverable under section 107.” (footnote omitted)). A party obliged by circuit precedent to plead in a certain way can hardly be deemed to have waived a plea the party could have maintained had the law of the circuit permitted him to do so. But cf. ante, at 168-169.

In the Fifth Circuit’s view, § 107 supplied the right of action for Aviall’s claim, and § 113(f)(1) prescribed the procedural framework. 312 F. 3d 677, 683, and n. 10 (2002) (en banc) (stating that § 107 “impliedly authorizes a cause of action for contribution” and § 113(f) “govern[s] and regulate[s]” the action (citing Geraghty & Miller, 234 F. 3d, at 924; internal quotation marks omitted)); see § 113(f)(1) (calling for the governance of “Federal law” and the application of “the Federal Rules of Civil Procedure,” arid specifying that “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). Notably, Aviall expressly urged in the Court of Appeals that, were the court to conclude that §113(f)(l)’s “during or following” language excluded application of that section to this case, Aviall’s suit should be adjudicated independently under § 107(a). See Response of Appellant Aviall Services, Inc., to the Amicus Curiae Brief for United States in No. 00-10197 (CA5), p. 24 (“[PJarties who are excluded from seeking contribution under section 113(f)(1) must therefore have available to them the broader right of cost recovery [covering both full recovery and contribution] under section 107(a).”); cf. Key Tronic, 511 U. S., at 816 (“[T]he statute now expressly authorizes a cause of action for contribution in § 113 and impliedly authorizes a similar and somewhat overlapping remedy in § 107.”).

I see no cause for protracting this litigation by requiring the Fifth Circuit to revisit a determination it has essentially made already: Federal courts, prior to the enactment of § 113(f)(1), had correctly held that PRPs could “recover [under § 107] a proportionate share of their costs in actions for contribution against other PRPs,” 312 F. 3d, at 687; nothing in §113 retracts that right, ibid, (noting that § 113(f)’s saving clause preserves all preexisting state and federal rights of action for contribution, including the § 107 implied right this Court recognized in Key Tronic, 511 U. S., at 816). Accordingly, I would not defer a definitive ruling by this Court on the question whether Aviall may pursue a § 107 claim for relief against Cooper.

       Section 113(f)(1) is codified at 42 U. S. C. § 9613(f)(1). We refer throughout, for the most part, to sections of CERCLA rather than the U. S. Code.

       The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency (EPA) pursuant to CERCLA § 105, 42 U. S. C. § 9605 (2000 ed. and Supp. I). The plan is codified at 40 CFR pt. 300 (2004).

       In Key Tronic Corp. v. United States, 511 U. S. 809 (1994), we observed that §§ 107 and 113 created “similar and somewhat overlapping” remedies. Id., at 816. The cost recovery remedy of § 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are similar at a general level in that they both allow private parties to recoup costs from other private parties. But the two remedies are clearly distinct.

       Aviall asserts that it framed its claim in the manner compelled by Fifth Circuit precedent holding that a §113 claim is a type of §107 claim. Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924 (2000); see also, e. g., Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F. 3d 344, 349-353 (CA6 1998); Sun Co., Inc. v. Browning-Ferris, Inc., 124 F. 3d 1187, 1191 (CA10 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301-1302 (CA9 1997).

       Neither has Aviall been subject to an administrative order under § 106; thus, we need not decide whether such an order would qualify as a “civil action under section 9606 ... or under section 9607(a)” of CERCLA. 42 U. S. C. § 9613(f)(1).

       As noted above, we do not address whether a § 107 cost recovery action by Aviall (if not waived) may seek some form of liability other than joint and several.

       Key Tronic, a PRP, asserted a cost-recovery claim under § 107(a) to recoup approximately $1.2 million in costs that it allegedly incurred cleaning up its site “at its own initiative.” Key Tronic Corp. v. United States, 984 F. 2d 1025, 1026 (CA9 1993). Although Key Tronic settled a portion of its liability with the Environmental Protection Agency (EPA), the claim advanced in Key Tronic’s § 107(a) suit rested on remedial action taken before the EPA’s involvement, remediation that did not figure in the settlement. Id., at 1026-1027; Key Tronic Corp. v. United States, 511 U. S. 809, 811-812 (1994).

       The cases to which the Court refers, ante, at 171, Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981), and Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981), do not address the implication of a right of action for contribution under CERCLA. Texas Industries concerned the Sherman and Clayton Acts, 451 U. S., at 639-646; Northwest Airlines, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, 451 U. S., at 90-99. A determination suitable in one statutory context does not necessarily carry over to a different statutory setting.