author: Justice Thomas Justice Stevens, Justice Breyer,

text:
    NATIONAL PARK HOSPITALITY ASSOCIATION v. DEPARTMENT OF THE INTERIOR et al.
    No. 02-196.
    Argued March 4, 2003
    Decided May 27, 2003

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 812. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 817.

      Kenneth S. Getter argued the cause for petitioner. With him on the briefs were Richard B. Katskee and David M. Gossett. Robert R. Gasaway and Ashley C. Parrish filed briefs for Xanterra Parks & Resorts, LLC, respondent under this Court’s Rule 12.6, urging reversal.

      John P. Elwood argued the cause for the federal respondents. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, and Barbara C. Biddle.

   Justice Thomas

delivered the opinion of the Court.

Petitioner, a nonprofit trade association that represents concessioners doing business in the national parks, challenges a National Park Service (NPS) regulation that purports to render the Contract Disputes Act of 1978 (CDA), 92 Stat. 2383, 41 U. S. C. § 601 et seq., inapplicable to concession contracts. We conclude that the controversy is not yet ripe for judicial resolution.

I

The CDA establishes rules governing disputes arising out of certain Government contracts. The statute provides that these disputes first be submitted to an agency’s contracting officer. §605. A Government contractor dissatisfied with the contracting officer’s decision may seek review either from the United States Court of Federal Claims or from an administrative board in the agency. See §§606, 607(d), 609(a). Either decision may then be appealed to the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295; 41 U. S. C. § 607(g).

Since 1916 Congress has charged NPS to “promote and regulate the use of the Federal areas known as national parks,” “conserve the scenery and the natural and historic objects and the wild life therein,” and “provide for [their] enjoyment [in a way that] will leave them unimpaired for the enjoyment of future generations.” An Act To establish a National Park Service, 39 Stat. 535, 16 U. S. C. § 1. To make visits to national parks more enjoyable for the public, Congress authorized NPS to “grant privileges, leases, and permits for the use of land for the accommodation of visitors.” § 3, 39 Stat. 535. Such “privileges, leases, and permits” have become embodied in national parks concession contracts.

The specific rules governing national parks concession contracts have changed over time. In 1998, however, Congress enacted the National Parks Omnibus Management Act of 1998 (1998 Act or Act), Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions in 16 U. S. C. §§5951-5966), establishing a new and comprehensive concession management program for national parks. The 1998 Act authorizes the Secretary of the Interior to enact regulations implementing the Act’s provisions, § 5965.

NPS, to which the Secretary has delegated her authority under the 1998 Act, promptly began a rulemaking proceeding to implement the Act. After notice and comment, final regulations were issued in April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51). The regulations define the term “concession contract” as follows:

“A concession contract (or contract) means a binding written agreement between the Director and a conces-sioner .... Concession contracts are not contracts within the meaning of 41 U. S. C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions.” 36 CFR §51.3 (2002).

Through this provision NPS took a position with respect to a longstanding controversy with the Department of Interi- or’s Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B. C. A., ¶ 21708, pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved unavailing, National Park Concessions, Inc., 94-3 B. C. A., ¶ 27104, pp. 135096-135098 (1994).

II

Petitioner challenged the validity of § 51.3 in the District Court for the District of Columbia. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 142 F. Supp. 2d 54, 80-82 (2001). The District Court upheld the regulation, applying the deference principle of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The court concluded that the CDA is ambiguous on whether it applies to concession contracts and found NPS’ interpretation of the CDA reasonable. 142 F. Supp. 2d, at 80-82.

The Court of Appeals for the District of Columbia Circuit affirmed, albeit on different grounds. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 282 F. 3d 818, 834-835 (2002). Recognizing that NPS “does not administer the [CDA], and thus may not have interpretative authority over its provisions,” the court placed no reliance on Chevron but simply “agree[d]” with NPS’ reading of the CDA, finding that reading consistent with both the CDA and the 1998 Act. 282 F. 3d, at 835. We granted certiorari to consider whether the CDA applies to contracts between NPS and concession-ers in the national parks. 537 U. S. 1018 (2002). Because petitioner has brought a facial challenge to the regulation and is not litigating any concrete dispute with NPS, we asked the parties to provide supplemental briefing on whether the case is ripe for judicial action. Tr. of Oral Arg. 62.

III

Ripeness is a justiciability doctrine designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U. S. 136, 148-149 (1967); accord, Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 732-733 (1998). The ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction,” Reno v. Catholic Social Services, Inc., 509 U. S. 43, 57, n. 18 (1993) (citations omitted), but, even in a case raising only prudential concerns, the question of ripeness may be considered on a court’s own motion. Ibid, (citing Regional Rail Reorganization Act Cases, 419 U. S. 102, 138 (1974)).

Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. Abbott Laboratories, supra, at 149. “Absent [a statutory provision providing for immediate judicial review], a regulation is not ordinarily considered the type of agency action ‘ripe’ for judicial review under the [Administrative Procedure Act (APA)] until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. . . .)” Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990). Under the facts now before us, we conclude this case is not ripe.

We turn first to the hardship inquiry. The federal respondents concede that, because NPS has no delegated rule-making authority under the CDA, the challenged portion of §51.3 cannot be a legislative regulation with the force of law. See Brief for Federal Respondents 15, n. 6; Supplemental Brief for Federal Respondents 6. They note, though, that “agencies may issue interpretive rules ‘to advise the public of the agency’s construction of the statutes and rules which it administersBrief for Federal Respondents 15, n. 6 (quoting Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99 (1995) (emphasis added)), and seek to characterize § 51.3 as such an interpretive rule.

We disagree. Unlike in Guernsey Memorial Hospital, where the agency issuing the interpretative guideline was responsible for administering the relevant statutes and regulations, NPS is not empowered to administer the CDA. Rather, the task of applying the CDA rests with agency contracting officers and boards of contract appeals, as well as the Federal Court of Claims, the Court of Appeals for the Federal Circuit, and, ultimately, this Court. Moreover, under the CDA, any authority regarding the proper arrangement of agency boards belongs to the Administrator for Federal Procurement Policy. See 41 U. S. C. § 607(h) (“Pursuant to the authority conferred under the Office of Federal Procurement Policy Act [41 U. S. C. §401 et seq.], the Administrator is authorized and directed, as may be necessary or desirable to carry out the provisions of this chapter, to issue guidelines with respect to criteria for the establishment, functions, and procedures of the agency boards .. .”)• Consequently, we consider § 51.3 to be nothing more than a “general statement] of policy” designed to inform the public of NPS’ views on the proper application of the CDA. 5 U. S. C. § 553(b)(3)(A).

Viewed in this light, § 51.3 does not create “adverse effects of a strictly legal kind,” which we have previously required for a showing of hardship. Ohio Forestry Assn., Inc., 523 U. S., at 733. Just like the Forest Service plan at issue in Ohio Forestry, § 51.3 “do[es] not command anyone to do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or criminal liability; [and it] create[s] no legal rights or obligations.” Ibid.

Moreover, §51.3 does not affect a concessioner’s primary conduct. Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158, 164 (1967); Ohio Forestry Assn., supra, at 733-734. Unlike the regulation at issue in Abbott Laboratories, which required drug manufacturers to change the labels, advertisements, and promotional materials they used in marketing prescription drugs on pain of criminal and civil penalties, see 387 U. S., at 152-153, the regulation here leaves a con-cessioner free to conduct its business as it sees fit. See also Gardner v. Toilet Goods Assn., Inc., 387 U. S. 167, 171 (1967) (regulations governing conditions for use of color additives in foods, drugs, and cosmetics were “self-executing” and had “an immediate and substantial impact upon the respondents”).

We have previously found that challenges to regulations similar to § 51.3 were not ripe for lack of a showing of hardship. In Toilet Goods Assn., for example, the Pood and Drug Administration (FDA) issued a regulation requiring producers of color additives to provide FDA employees with access to all manufacturing facilities, processes, and formu-lae. 387 U. S., at 161-162. We concluded the case was not ripe for judicial review because the impact of the regulation could not “be said to be felt immediately by those subject to it in conducting their day-to-day affairs” and “no irremedia-bl[y] adverse consequences flow[ed] from requiring a later challenge.” Id., at 164. Indeed, the FDA regulation was more onerous than §51.3 because failure to comply with it resulted in the suspension of the producer’s certification and, consequently, could affect production. See id., at 165, and n. 2. Here, by contrast, concessioners suffer no practical harm as a result of §51.3. All the regulation does is announce the position NPS will take with respect to disputes arising out of concession contracts. While it informs the public of NPS’ view that concessioners are not entitled to take advantage of the provisions of the CDA, nothing in the regulation prevents concessioners from following the procedures set forth in the CDA once a dispute over a concession contract actually arises. And it appears that, notwithstanding § 51.3, the IBCA has been quite willing to apply the CDA to certain concession contracts. Watch Hill Concessions, Inc., 01-1 B. C. A., ¶ 31298, pp. 154520-154521 (IBCA 2001) (concluding that concession contract was subject to the CDA despite the contrary language in § 51.3).

Petitioner contends that delaying judicial resolution of this issue will result in real harm because the applicability vel non of the CDA is one of the factors a concessioner takes into account when preparing its bid for NPS concession contracts. See Supplemental Brief for Petitioner 4-6. Petitioner’s argument appears to be that mere uncertainty as to the validity of a legal rule constitutes a hardship for purposes of the ripeness analysis. We are not persuaded. If we were to follow petitioner’s logic, courts would soon be overwhelmed with requests for what essentially would be advisory opinions because most business transactions could be priced more accurately if even a small portion of existing legal uncertainties were resolved. In short, petitioner has failed to demonstrate that deferring judicial review will result in real hardship.

We consider next whether the issue in this case is fit for review. Although the question presented here is “a purely legal one” and § 51.8 constitutes “final agency action” within the meaning of § 10 of the APA, 5 U. S. C. § 704, Abbott Laboratories, supra, at 149, we nevertheless believe that further factual development would “significantly advance our ability to deal with the legal issues presented,” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 82 (1978); accord, Ohio Forestry Assn., Inc., 523 U. S., at 736-737; Toilet Goods Assn., supra, at 163. While the federal respondents generally argue that NPS was correct to conclude that the CDA does not cover concession contracts, they acknowledge that certain types of concession contracts might come under the broad language of the CDA. Brief for Federal Respondents 33-34. Similarly, while petitioner and respondent Xanterra Parks & Resorts, LLC, present a facial challenge to § 51.3, both rely on specific characteristics of certain types of concession contracts to support their positions. See Brief for Petitioner 21-23, 36; Brief for Respondent Xanterra Parks & Resorts, LLC, 20, 22. In light of the foregoing, we conclude that judicial resolution of the question presented here should await a concrete dispute about a particular concession contract.

* * *

For the reasons stated above, we vacate the judgment of the Court of Appeals insofar as it addressed the validity of § 51.3 and remand the case with instructions to dismiss the case with respect to this issue.

It is so ordered.

Justice Stevens,

concurring in the judgment.

Petitioner seeks this Court’s resolution of the straightforward legal question whether the Contract Disputes Act of 1978 (CDA), 41 U. S. C. § 601 et seq., applies to concession contracts with the National Park Service. Though this question is one that would otherwise be appropriate for this Court to decide, in my view petitioner has not satisfied the threshold requirement of alleging sufficient injury to invoke federal-court jurisdiction. If such allegations of injury were present, however, this case would not raise any of the concerns that the ripeness doctrine was designed to avoid.

M

The CDA provides certain significant protections for private parties contracting with federal agencies. It authorizes de novo review of a contractor’s disputed decision, payment of prejudgment interest if a dispute with the agency is resolved in the contractor’s favor, and expedited procedures for resolving minor disputes. §§607-612. The value to contractors of these protections has not been quantified in this case, but the protections are unquestionably significant.

Ever since the enactment of the CDA in 1978, the National Park Service has insisted that the statute does not apply to contracts with concessionaires who operate restaurants, lodges, and gift shops in the national parks. See, e. g., Lodging of Federal Respondents 1. In its view, the statute applies to Government contracts involving the procurement of goods or services that the Government agrees to pay for, not to licenses issued by the Government to concessionaires who sell goods and services to the public. After the enactment of the National Parks Omnibus Management Act of 1998, 16 U. S. C. §§5951-5966, the Park Service issued a regulation restating that position. 36 CFR §51.3 (2002). There is nothing tentative or inconclusive about the agency’s position. The promulgation of the regulation indicated that the agency had determined that a clear statement of its interpretation of the CDA would be useful to potential concessionaires bidding for future contracts. Under the Park Service’s view, nearly 600 concession contracts in 131 national parks fall outside of the CDA. Lodging of Federal Respondents 6.

Petitioner is a trade association whose members are parties to such contracts and periodically enter into negotiations for future contracts. They are undisputedly interested in knowing whether disputes that are sure to arise under some of those contracts will be resolved pursuant to the CDA procedures or the less favorable procedures that will apply if the Park Service regulation is valid.

II

In our leading case discussing the “ripeness doctrine” we explained that the question whether a controversy is “ripe” for judicial resolution has a “twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U. S. 136, 148-149 (1967). Both aspects of the inquiry involve the exercise of judgment, rather than the application of a black-letter rule.

The first aspect is the more important and it is satisfied in this case. The CDA applies to any express or implied contract for the procurement of property, services, or construction. 41 U. S. C. § 602(a). In the view of the Park Service, a procurement contract is one that obligates the Government to pay for goods and services that it receives, whereas concession contracts authorize third parties to provide services to park area visitors. Petitioner, on the other hand, argues that the contracts provide for the performance of services that discharge a public duty even though the Government does not pay the concessionaires. Whichever view may better reflect the intent of the Congress that enacted the CDA, it is perfectly clear that this question of statutory interpretation is as “fit” for judicial decision today as it will ever be. Even if there may be a few marginal cases in which the applicability of the CDA may depend on unique facts, the regulation’s blanket exclusion of concession contracts is either a correct or an incorrect interpretation of the statute. The issue has been fully briefed and argued and, in my judgment, is ripe for decision.

The second aspect of the ripeness inquiry is less clear and less important. If there were reason to believe that further development of the facts would clarify the legal question, or that the agency’s view was tentative or apt to be modified, only a strong showing of hardship to the parties would justify a prompt decision. In this case, it is probably correct that the hardship associated with a delayed decision is minimal. On the other hand, as the Park Service’s decision to promulgate the regulation demonstrates, eliminating the present uncertainty about the applicable dispute resolution procedures will provide a benefit for all interested parties. If petitioner had alleged sufficient injury arising from the Park Service’s position, I would favor the exercise of our discretion to consider the case ripe for decision. Because such an allegation of injury is absent, however, petitioner does not have standing to have this claim adjudicated.

h-I H-i

To establish an Article III case or controversy, a litigant must establish that he has “standing.” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990). To have standing, a “plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984); This requirement specifically applies to parties challenging the validity of administrative regulations. See Sierra Club v. Morton, 405 U. S. 727, 735 (1972).

In the complaint filed in the District Court, petitioner alleged that the resolution of the merits of its dispute over the validity of the Park Service regulation was important, but it failed to allege that the existence of the regulation had caused any injury to it or to its members:

“The applicability of the CDA to concession contracts is important to concessioners because NPS concession contracts are of lengthy duration, often require significant upfront financial commitments, and by their terms provide the agency with broad unilateral discretion to alter many aspects of those contracts over time. The unlawful decision by the NPS to exempt itself from the CDA is thus of great importance to the contract solicitation process.” App. 22.

At oral argument, counsel reiterated that the resolution of this question was “important” and that concessionaires “need to know now, in terms of deciding whether to bid on certain contracts, what their rights are under those contracts.” Tr. of Oral Arg. 7-8. After argument, when asked to brief the issue of ripeness, petitioner stated that its members “need to know before a dispute arises — and in fact, before deciding whether to bid on a concessions contract — what procedural mechanisms will apply to contractual disputes,” and that “the prices at which concessioners ‘compete for Government contract business’ would be directly affected.” Supplemental Brief for Petitioner 1, 5 (citations omitted). It is fair to infer from the record before us, however, that petitioner’s members have bid on, and been awarded, numerous contracts without having the benefit of a definitive answer to the important legal question that their complaint has identified.

Neither in its complaint in the District Court nor in its briefing or argument before this Court has petitioner identified a specific incident in which the Park Service’s regulation caused a concessionaire to refuse to bid on a contract, to modify its bid, or to suffer any other specific injury. Rather, petitioner has focused entirely on the importance of knowing whether the Park Service’s position is valid. While it is no doubt important for petitioner and its members to know as much as possible about the future of their business transactions, importance does not necessarily establish injury. Though some of petitioner’s members may well have suffered some sort of injury from the Park Service’s regulation, neither the allegations of the complaint nor the evidence in the record identifies any specific injury that would be redressed by a favorable decision on the merits of the case. Accordingly, petitioner has no standing to pursue its claim.

For this reason, I concur in the Court’s judgment.

Justice Breyer,

with whom Justice O’Connor joins, dissenting.

Like the majority, I believe that petitioner National Park Hospitality Association has standing here to pursue its legal claim, namely, that the dispute resolution procedures set forth in the Contract Disputes Act of 1978 (CDA), 41 U. S. C. § 601 et seq., apply to national park concession contracts.. But, unlike the majority, I believe that the question is ripe for our consideration.

I cannot agree with Justice Stevens that petitioner lacks Article III standing to bring suit on behalf of its members. See ante, at 815-816 and this page (opinion concurring in judgment). In my view, the National Park Service’s definition of “concession contract” to exclude the CDA’s protections (a definition embodied in the regulation about which petitioner complains, see 36 CFR §51.3 (2002)) causes petitioner and its members “injury in fact.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (discussing requirements of “injury in fact,” causation, and redressability); see also Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 343 (1977) (association’s standing based on injury to a member).

For one thing, many of petitioner’s members are parties to, as well as potential bidders for, park concession contracts. Lodging for Federal Respondents 6 (listing 590 concession contracts in 131 parks). Those members will likely find that disputes arise under the contracts. And in resolving such disputes, the Park Service, following its regulation, will reject the concessioners’ entitlement to the significant protections or financial advantages that the CDA provides. See 41 U. S. C. §§ 605-612; ante, at 813-814 (STEVENS, J., concurring in judgment). In the circumstances present here, that kind of injury, though a future one, is concrete and likely to occur.

For another thing, the challenged Park Service interpretation causes a present injury. If the CDA does not apply to concession contract disagreements, as the Park Service regulation declares, then some of petitioner’s members must plan now for higher contract implementation costs. Given the agency’s regulation, bidders will likely be forced to pay more to obtain, or to retain, a concession contract than they believe the contract is worth. That is what petitioner argues. Supplemental Brief for Petitioner 4-6. See also App. to Supplemental Brief for Petitioner 3a-4a. Certain general allegations in the underlying complaints support this claim. See, e.g., App. 20-22, ¶¶35, 61-67; Amfac Resorts, L. L. C. Complaint in No. 1:00CV02838 (DC), pp. 4-5, ¶8 (available in Clerk of Court’s case file); id., at 31-33, ¶¶ 102-111. Cf. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 282 F. 3d 818, 830 (CADC 2002). And several uncontested circumstances indicate that such allegations are likely to prove true.

First, as the record makes clear, petitioner has a widespread membership, and many of its members regularly bid on contracts that, through cross-references to the Park Service regulation, embody the Park Service’s interpretation. See, e. g., App. 69, 80; Lodging for Federal Respondents 14, 25. See also Standard Concession Contract, 65 Fed. Reg. 26052, 26063, 26065 (2000); Simplified Concession Contracts, id., at 44898, 44899-44900, 44910, 44912. Second, related contract solicitations are similarly widespread and recurring, involving numerous bidders. Third, after investigation, the relevant congressional committee found that the “way potential contractors view the disputes-resolving system influ-enees how, whether, and at what prices they compete for government contract business.” S. Rep. No. 95-1118, p. 4 (1978). Fourth, the CDA provides a prevailing contractor with prejudgment interest, and authorizes expedited procedures. 41 U. S. C. §§ 607(f), 608, 611. These are factors that make the inapplicability of the CDA more costly to successful bidders. See S. Rep. No. 95-1118, at 2-4; ante, at 813-814 (Stevens, J., concurring in judgment).

These circumstances make clear that petitioner’s members will likely suffer a concrete monetary harm, either now or in the foreseeable future. Such a showing here is sufficient to satisfy the Constitution’s standing requirements. And the threatened injuries, present and future — monetary harm, injuries to a potential or actual contractual relationship, and injuries that arguably fall within the CDA’s protective scope — are sufficient to satisfy “prudential” standing requirements as well. Federal Election Comm’n v. Akins, 524 U. S. 11, 19-20 (1998); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). Cf. Columbia Broadcasting System, Inc. v. United States, 316 U. S. 407, 421-422 (1942).

Given this threat of immediate concrete harm (primarily in the form of increased bidding costs), this case is also ripe for judicial review. As Justice Stevens explains in Parts I and II of his opinion, the case now presents a legal issue— the applicability of the CDA to concession contracts — that is fit for judicial determination. That issue is a purely legal one, demanding for its resolution only use of ordinary judicial interpretive techniques. See ante, at 814-815 (opinion concurring in judgment). The relevant administrative action, i. e., the agency’s definition of “concession contract” under the National Parks Omnibus Management Act of 1998, 16 U. S. C. §§ 5951-5966, has been “formalized,” Abbott Laboratories v. Gardner, 387 U. S. 136, 148 (1967). It is embodied in an interpretive regulation issued after notice and public comment and pursuant to the Department of the Interior’s formal delegation to the National Park Service of its own statutorily granted rulemaking authority, §5965; ante, at 806-807. (Unlike the majority, I would apply to the regulation the legal label “interpretive rule,” not “general statement of policy,” ante, at 809 (internal quotation marks and alteration omitted), though I agree with the majority that, because the Park Service does not administer the CDA, see ibid., we owe its conclusion less deference.) The Park Service’s interpretation is definite and conclusive, not tentative or likely to change; as the majority concedes, the Park Service’s determination constitutes “final agency action” within the meaning of the Administrative Procedure Act. Ante, at 812 (internal quotation marks omitted).

The only open question concerns the nature of the harm that refusing judicial review at this time will cause petitioner’s members. See Abbott Laboratories, supra, at 149. The fact that concessioners can raise the legal question at a later time, after a specific contractual dispute arises, see ante, at 812, militates against finding this case ripe. So too does a precedential concern: Will present review set a precedent that leads to premature challenges in other cases where agency interpretations may be less formal, less final, or less well suited to immediate judicial determination? See ante, at 811-812.

But the fact of immediate and particularized (and not totally reparable) injury during the bidding process offsets the first of these considerations. And the second is more than offset by a related congressional statute that specifies that prospective bidders for Government contracts can obtain immediate judicial relief from agency determinations that unlawfully threaten precisely this kind of harm. See 28 U. S. C. § 1491(b)(1) (allowing prospective bidder to object, for instance, to “solicitation by a Federal agency for bids ... for a proposed contract” and permitting review of related allegation of “any , . . violation of statute or regulation in connection with a procurement or a proposed procurement”). See also R. Nash, S. Schooner, & K. O’Brien, The Government Contracts Reference Book 308, 423 (2d ed. 1998). This statute authorizes a potential bidder to complain of a proposed contractual term that, in the bidder’s view, is unlawful, say, because it formally incorporates a regulation that embodies a specific, allegedly unlawful, remedial requirement. Cf. App. 25, ¶¶ 114-116 (excerpts from petitioner’s complaint making just this claim); App. to Supplemental Brief for Petitioner 2a, ¶¶ 121-122 (same). That being so, i. e., the present injury in such a case being identical to the present injury at issue here, I can find no convincing prudential reason to withhold Administrative Procedure Act review.

In sum, given this congressional policy, the concrete nature of the injury asserted by petitioner, and the final nature of the agency action at issue, I see no good reason to postpone review. I would find the issue ripe for this Court’s consideration. And I would affirm the decision of the Court of Appeals on the merits, primarily for the reasons set forth in its opinion as supplemented here by the Government.

       Title 41 U. S. C. § 602(a) provides:
      “Unless otherwise specifically provided herein, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) entered into by an executive agency for—
      “(1) the procurement of property, other than real property in being;
      “(2) the procurement of services;
      “(3) the procurement of construction, alteration, repair or maintenance of real property; or,
      “(4) the disposal of personal property.”

       The CDA also provides that a prevailing contractor is entitled to prejudgment interest. § 611.

       For ease of reference, throughout this opinion we will refer to the second sentence quoted in the text as § 51.3.

       Petitioner notes that its complaint challenged not only the regulation but also two specific prospectuses issued by NPS in late 2000. Thus, petitioner argues, even if the first challenge is not ripe, the latter two are reviewable under the Tucker Act, 28 U. S. C. § 1491(b)(1). See Supplemental Brief for Petitioner 6-8. Petitioner did not seek certiorari review on these issues; accordingly, we decline to consider them. See this Court’s Rule 14.1(a); Yee v. Escondido, 503 U. S. 519, 535-536 (1992).
      Similarly, Justice Breyer’s reliance on the Tucker Act to show that the hardship requirement of Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), has been satisfied, see post, at 820-821 (dissenting opinion), is misplaced. The fact that one “congressional statute” authorizes “immediate judicial relief from [certain types of] agency determinations,” post, at 820, says nothing about whether “immediate judicial review” is advisable for challenges brought against other types of agency actions based on a different statute.


source: Caselaw Access Project

author: Justice Ginsburg

license: Public Domain

text:
    BLACK & DECKER DISABILITY PLAN v. NORD
    No. 02-469.
    Argued April 28, 2003
    Decided May 27, 2003

      Ginsbukg, J., delivered the opinion for a unanimous Court.

      Lee T Paterson argued the cause for petitioner. With him on the briefs were John R. Ates, Amanda C. Sommer-feld, and William G. Bruner III.

      Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Howard M. Radzely, Allen H. Feldman, Nathaniel I. Spiller, and Mark S. Flynn.

      Lawrence D. Rohlfing argued the cause for respondent. With him on the brief was Eric Schnapper.

      Briefs of amici curiae urging reversal were filed for the American Benefits Council by Robert N. Eccles and Jonathan D. Hacker; for the American Council of Life Insurers et al. by William J. Kayatta, Jr., Mark E. Schmidtke, and Victoria E. Firma; for the Bert Bell/Pete Rozelle NFL Player Retirement Plan by Douglas W. Ell, John P. McAllister, and Alvaro I. Anillo; for the Central States, Southeast and Southwest Areas Health and Welfare Fund by Thomas C. Nyhan, James P. Condon, and John J. Franczyk, Jr.; for the Delta Family-Care Disability and Survivor-ship Plan et al. by Hunter R. Hughes; for the ERISA Industry Committee by Caroline M. Brown and John M. Vine; for the National Association of Manufacturers et al. by Frederick R. Damm, Lira A Johnson, Jan S. Amundson, and Quentin Riegel; and for Peabody Energy Corp. et al. by Mark E. Solomons and Laura Metcoff Klaus.

      Briefs of amici curiae urging affirmance were filed for the AARP by Mary Ellen Signorille and Melvin R. Radowitz; for the American Medical Association by Joseph R. Guerra and Jack R. Bierig; for the National Employment Lawyers Association by Jeffrey Lewis, Jenifer Bosco, Daniel T. Driesen, and Ronald Dean; and for the National Organization of Social Security Claimants’ Representatives by Nancy G. Shor, Eric Schnaufer, Robert E. Rains, and Jon Holder.

   Justice Ginsburg

delivered the opinion of the Court.

Under a rule adopted by the Commissioner of Social Security, in determining whether a claimant is entitled to Social Security disability benefits, special weight is accorded opinions of the claimant’s treating physician. See 20 CFR §§ 404.1527(d)(2), 416.927(d)(2) (2002). This case presents the question whether a similar “treating physician rule” applies to disability determinations under employee benefits plans covered by the Employee Retirement Income Security Act of 1974 (ERISA or Act), 88 Stat. 882, as amended, 29 U. S. C. § 1001 et seq. We hold that plan administrators are not obliged to accord special deference to the opinions of treating physicians.

ERISA and the Secretary of Labor’s regulations under the Act require “full and fair” assessment of claims and clear communication to the claimant of the “specific reasons” for benefit denials. See 29 U. S. C. § 1133; 29 CFR §2560.503-1 (2002). But these measures do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant’s medieal condition. Because the Court of Appeals for the Ninth Circuit erroneously applied a “treating physician rule” to a disability plan governed by ERISA, we vacate that court’s judgment and remand for further proceedings.

I

Petitioner Black & Decker Disability Plan (Plan), an ERISA-governed employee welfare benefit plan, covers employees of Black & Decker Corporation (Black & Decker) and certain of its subsidiaries. The Plan provides benefits for eligible employees with a “disability.” As relevant here, the Plan defines “disability” to mean “the complete inability ... of a Participant to engage in his regular occupation with the Employer.” 296 F. 3d 823, 826, n. 2 (CA9 2002). Black & Decker both funds the Plan and acts as plan administrator, but it has delegated authority to Metropolitan Life Insurance Company (MetLife) to render initial recommendations on benefit claims. Disability determinations, the Black & Decker Plan provides, “[are to] be made by the [plan administrator] based on suitable medical evidence and a review of the Participant’s employment history that the [plan administrator] deems satisfactory in its sole and absolute discretion.” Id., at 826, n. 1.

Respondent Kenneth L. Nord was formerly employed by a Black & Decker subsidiary as a material planner. His job, classed “sedentary,” required up to six hours of sitting and two hours of standing or walking per day. Id., at 826.

In 1997, Nord consulted Dr. Leo Hartman about hip and back pain. Dr. Hartman determined that Nord suffers from a mild degenerative disc disease, a diagnosis confirmed by a Magnetic Resonance Imaging scan. After a week’s trial on pain medication prescribed by Dr. Hartman, Nord’s condition remained unimproved. Dr. Hartman told Nord to cease work temporarily, and recommended that he consult an orthopedist while continuing to take the pain medication.

Nord submitted a claim for disability benefits under the Plan, which MetLife denied in February 1998. Nord next exercised his right to seek further consideration by Met-Life’s “Group Claims Review.” Id., at 827. At that stage, Nord submitted letters and supporting documentation from Dr. Hartman and a treating orthopedist to whom Hartman had referred Nord. Nord also submitted a questionnaire form, drafted by Nord’s counsel, headed “Work Capacity Evaluation.” Black & Decker human resources representative Janmarie Forward answered the questions, as the form instructed, by the single word “yes” or “no.” One of the six items composing the “Work Capacity Evaluation” directed Forward to “[a]ssume that Kenneth Nord would have a moderate pain that would interfere with his ability to perform intense interpersonal communications or to act appropriately under stress occasionally (up to one-third) during the day.” Lodging for Pet. for Cert. L-37. The associated question asked whether an “individual of those limitations [could] perform the work of a material planner.” Ibid. Forward marked a space labeled “no.”

During the MetLife review process, Black & Decker referred Nord to neurologist Antoine Mitri for an independent examination. Dr. Mitri agreed with Nord’s doctors that Nord suffered from a degenerative disc disease and chronic pain. But aided by pain medication, Dr. Mitri concluded, Nord could perform “sedentary work with some walking interruption in between.” Id., at L-45. MetLife thereafter made a final recommendation to deny Nord’s claim.

Black & Decker accepted MetLife’s recommendation and, on October 27,1998, so informed Nord. The notification letter summarized the conclusions of Nord’s doctors, the results of diagnostic tests, and the opinion of Dr. Mitri. See id., at L-155 to L-156. It also recounted that Black & Decker had forwarded Dr. Mitri’s report to Nord’s counsel with a request for comment by Nord’s attending physician. Although Nord had submitted additional information, the letter continued, he had “provided ... no new or different information that would change [MetLife’s] original decision.” Id., at L-156. The letter further stated that the Work Capacity Evaluation form completed by Black & Decker human resources representative Forward was “not sufficient to reverse [the Plan’s] decision.” Ibid.

Seeking to overturn Black & Decker’s determination, Nord filed this action in Federal District Court “to recover benefits due to him under the terms of his plan.” 29 U. S. C. § 1132(a)(1)(B). On cross-motions for summary judgment, the District Court granted judgment for the Plan, concluding that Black & Decker’s denial of Nord’s claim was not an abuse of the plan administrator’s discretion.

The Court of Appeals for the Ninth Circuit roundly reversed and itself “grant[ed] Nord’s motion for summary judgment.” 296 F. 3d, at 832. Nord’s appeal, the Ninth Circuit explained, was controlled by that court’s recent decision in Regula v. Delta Family-Care Disability Survivorship Plan, 266 F. 3d 1130 (2001). 296 F. 3d, at 829. The Ninth Circuit had held in Regula that, when making benefit determinations, ERISA plan administrators must follow a “treating physician rule.” See 266 F. 3d, at 1139-1144. As described by the appeals court, the rule required an administrator “who rejects [the] opinions [of a claimant’s treating physician] to come forward with specific reasons for his decision, based on substantial evidence in the record.” Id., at 1139. Declaring that Nord was entitled to judgment as a matter of law, the Ninth Circuit emphasized that Black & Decker fell short under the treating physician rule: The plan administrator had not provided adequate justification, the Court of Appeals said, for rejecting opinions held by Dr. Hartman and others treating Nord on Hartman’s recommendation. 296 F. 3d, at 830-832.

We granted certiorari, 537 U. S. 1098 (2002), in view of the division among the Circuits on the propriety of judicial installation of a treating physician rule for disability claims within ERISA’s domain. Compare Regula, 266 F. 3d, at 1139; Donaho v. FMC Corp., 74 F. 3d 894, 901 (CA8 1996), with Elliott v. Sara Lee Corp., 190 F. 3d 601, 607-608 (CA4 1999); Delta Family-Care Disability and Survivorship Plan v. Marshall, 258 F. 3d 834, 842-843 (CA8 2001); Turner v. Delta Family-Care Disability and Survivorship Plan, 291 F. 3d 1270, 1274 (CA11 2002). See also Salley v. E. I. DuPont de Nemours & Co., 966 F. 2d 1011, 1016 (CA5 1992) (expressing “considerable doubt” on the question whether a treating physician rule should govern ERISA cases). Concluding that courts have no warrant to order application of a treating physician rule to employee benefit claims made under ERISA, we vacate the Ninth Circuit’s judgment and remand the case for further proceedings.

► — (

The treating physician rule at issue here was originally developed by Courts of Appeals as a means to control disability determinations by administrative law judges under the Social Security Act, 49 Stat. 620, 42 U. S. C. § 231 et seq. See Maccaro, The Treating Physician Rule and the Adjudication of Claims for Social Security Disability Benefits, 41 Soc. Sec. Rep. Serv. 833, 833-834 (1993). In 1991, the Commissioner of Social Security adopted regulations approving and formalizing use of the rule in the Social Security disability program. See 56 Fed. Reg. 36961, 36968 (codified at 20 CFR §§ 404.1527(d)(2), 416.927(d)(2) (2002)). The Social Security Administration, the regulations inform, will generally “give more weight to opinions from ... treating sources,” and “will always give good reasons in our notice of determination or decision for the weight we give your treating source’s opinion.” §§ 404.1527(d)(2), 416.927(d)(2).

Concluding that a treating physician rule should similarly govern private benefit plans under ERISA, the Ninth Circuit said in Regula that its “reasons ha[d] to do with common sense as well as consistency in [judicial] review of disability determinations where benefits are protected by federal law.” 266 F. 3d, at 1139. “Just as in the Social Security context,” the court observed, “the disputed issue in ERISA disability determinations concerns whether the facts of the beneficiary’s case entitle him to benefits.” Ibid. The Ninth Circuit perceived “no reason why the treating physician rule should not be used under ERISA in order to test the reasonableness of the [plan] administrator’s positions.” Ibid. The United States urges that the Court of Appeals “erred in equating the two [statutory regimes].” Brief for United States as Amicus Curiae 23. We agree.

“ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 113 (1989) (internal quotation marks and citations omitted). The Act furthers these aims in part by regulating the manner in which plans process benefits claims. Plans must “provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant.” 29 U. S. C. § 1133(1). ERISA further requires that plan procedures “afford a reasonable opportunity ... for a full and fair review” of dispositions adverse to the claimant. §1133(2). Nothing in the Act itself, however, suggests that plan administrators must accord special deference to the opinions of treating physicians. Nor does the Act impose a heightened burden of explanation on administrators when they reject a treating physician’s opinion.

ERISA empowers the Secretary of Labor to “prescribe such regulations as he finds necessary or appropriate to carry out” the statutory provisions securing employee benefit rights. § 1135; see § 1133 (plans shall process claims “[i]n accordance with regulations of the Secretary”). The Secretary’s regulations do not instruct plan administrators to accord extra respect to treating physicians’ opinions. See 29 CFR §2560.503-1 (1997) (regulations in effect when Nord filed his claim); 29 CFR § 2560.503-1 (2002) (current regulations). Notably, the most recent version of the Secretary’s regulations, which installs no treating physician rule, issued more than nine years after the Social Security Administration codified a treating physician rule in that agency’s regulations. Compare 56 Fed. Reg. 36932, 36961 (1991), with 65 Fed. Reg. 70265 (2000).

If the Secretary of Labor found it meet to adopt a treating physician rule by regulation, courts would examine that determination with appropriate deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The Secretary has not chosen that course, however, and an amicus brief reflecting the position of the Department of Labor opposes adoption of such a rule for disability determinations under plans covered by ERISA. See Brief for United States as Amicus Curiae 7-27. Although Congress “expect[ed]” courts would develop “a federal common law of rights and obligations under ERISA-regulated plans,” Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 56 (1987), the scope of permissible judicial innovation is narrower in areas where other federal actors are engaged, cf. Milwaukee v. Illinois, 451 U. S. 304, 317-332 (1981) (because Congress had enacted a comprehensive regulatory program dealing with discharge of pollutants into the Nation’s waters, the State could not maintain a federal common-law nuisance action against the city based on the latter’s pollution of Lake Michigan).

The question whether a treating physician rule would “in-creaste] the accuracy of disability determinations” under ERISA plans, as the Ninth Circuit believed it would, Regula, 266 F. 3d, at 1139, moreover, seems to us one the Legislature or superintending administrative agency is best positioned to address. As compared to consultants retained by a plan, it may be true that treating physicians, as a rule, “ha[ve] a greater opportunity to know and observe the patient as an individual.” Ibid, (internal quotation marks and citation omitted). Nor do we question the Court of Appeals’ concern that physicians repeatedly retained by benefits plans may have an “incentive to make a finding of ‘not disabled’ in order to save their employers money and to preserve their own consulting arrangements.” Id., at 1143. But the assumption that the opinions of a treating physician warrant greater credit than the opinions of plan consultants may make scant sense when, for example, the relationship between the claimant and the treating physician has been of short duration, or when a specialist engaged by the plan has expertise the treating physician lacks. And if a consultant engaged by a plan may have an “incentive” to make a finding of “not disabled,” so a treating physician, in a close case, may favor a finding of “disabled.” Intelligent resolution of the question whether routine deference to the opinion of a claimant’s treating physician would yield more accurate disability determinations, it thus appears, might be aided by empirical investigation of the kind courts are ill equipped to conduct.

Finally, and of prime importance, critical differences between the Social Security disability program and ERISA benefit plans caution against importing a treating physician rule from the former area into the latter. The Social Security Act creates a nationwide benefits program funded by Federal Insurance Contributions Act payments, see 26 U. S. C. §§3101(a), 3111(a), and superintended by the Commissioner of Social Security. To cope with the “more than 2.5 million claims for disability benefits [filed] each year,” Cleveland v. Policy Management Systems Corp., 526 U. S. 795, 803 (1999), the Commissioner has published detailed regulations governing benefits adjudications. See, e. g., id., at 803-804. Presumptions employed in the Commissioner’s regulations “grow out of the need to administer a large benefits system efficiently.” Id., at 804. By accepting and codifying a treating physician rule, the Commissioner sought to serve that need. Along with other regulations, the treating physician rule works to foster uniformity and regularity in Social Security benefits determinations made in the first instance by a corps of administrative law judges.

In contrast to the obligatory, nationwide Social Security program, “[n]othing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan.” Lockheed Corp. v. Spink, 517 U. S. 882, 887 (1996). Rather, employers have large leeway to design disability and other welfare plans as they see fit. In determining entitlement to Social Security benefits, the adjudicator measures the claimant’s condition against a uniform set of federal criteria. “[T]he validity of a claim to benefits under an ERISA plan,” on the other hand, “is likely to turn,” in large part, “on the interpretation of terms in the plan at issue.” Firestone Tire, 489 U. S., at 115. It is the Secretary of Labor’s view that ERISA is best served by “preserving] the greatest flexibility possible for ... operating claims processing systems consistent with the prudent administration of a plan.” Department of Labor, Employee Benefits Security Administration, http://www.dol.gov/ebsa/faqs/faq_ claims_proc_reg.html, Question B-4 (as visited May 6, 2003) (available in Clerk of Court’s case file). Deference is due that view.

Plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician. But, we hold, courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation. The Court of Appeals therefore erred when it employed a treating physician rule lacking Department of Labor endorsement in holding that Nord was entitled to summary judgment.

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       The Plan sets out a different standard for determining whether an employee is entitled to benefits for a period longer than 30 months. Because respondent Nord sought benefits “for up to 30 months,” 296 F. 3d 823, 826 (CA9 2002), the standard for longer term disability is not in play in this case.

       The Plan sought review only of the Court of Appeals’ holding “that an ERISA disability plan administrator’s determination of disability is subject to the ‘treating physician rule.’” Pet. for Cert. i. We express no opinion on any other issues.

       The treating physician rule has not attracted universal adherence outside the Social Security context. Some courts have approved a rule similar to the Social Security Commissioner’s for disability determinations under the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq., see, e. g., Pietrunti v. Director, Office of Workers’ Compensation Programs, 119 F. 3d 1035, 1042 (CA2 1997), and the Secretary of Labor has adopted a version of the rule for benefit determinations under the Black Lung Benefits Act, 30 U. S. C. § 901 et seq., see 20 CFR § 718.104(d)(5) (2002). One Court of Appeals, however, has rejected a treating physician rule for the assessment of claims of entitlement to veterans’ benefits for service-connected disabilities, see White v. Principi, 243 F. 3d 1378, 1381 (CA Fed. 2001), and another has rejected such a rule for disability determinations under the Railroad Retirement Act of 1974, 45 U. S. C. § 231 et seq., see Dray v. Railroad Retirement Bd., 10 F. 3d 1306, 1311 (CA7 1993). Furthermore, there appears to be no uniform practice regarding application of a treating physician rule under state workers’ compensation statutes. See Conradt v. Mt. Carmel School, 197 Wis. 2d 60, 69, 539 N. W. 2d 713, 717 (Ct. App. 1995) (“Conradt misrepresents the state of the law when she claims that a majority of states have adopted the ‘treating physician rule.’ ”).

       Nord asserts that there are two treating physician rules: a “procedural” rule, which requires a hearing officer to explain why she rejected the opinions of a treating physician, and a “substantive” rule, which requires that “more weight” be given to the medical opinions of a treating physician. Brief for Respondent 12-13 (internal quotation marks omitted). In this case, Nord contends, the Court of Appeals applied only the “procedural” version of the rule. Id., at 13. We are not certain that Nord’s reading of the Court of Appeals decision is correct. See 296 F. 3d, at 831 (faulting the Plan for, inter alia, having “[n]o evidence . . . that Nord’s treating physicians considered inappropriate factors in making their diagnosis or that Nord’s physicians lacked the requisite expertise to draw their medical conclusions”). At any rate, for the reasons explained in this opinion, we conclude that ERISA does not support judicial imposition of a treating physician rule, whether labeled “procedural” or “substantive.”


author: Per Curiam. Chief Justice Rehnquist,

text:
    BUNKLEY v. FLORIDA
    No. 02-8636.
    Decided May 27, 2003

       The state court explained that “[a]lthough some courts” prior to L. B. “may have interpreted ‘common pocketknife’ contrary to the holding in L. B., each court nevertheless sought to comply with legislative intent and to rule in harmony with the law as it was interpreted at that point in time.” 833 So. 2d 739, 745 (Fla. 2002). Thus, the court explained, “none of the convictions imposed pursuant to section 790.001(13) violated the Due Process Clause.” Ibid.

   Per Curiam.

Clyde Timothy Bunkley petitions for a writ of certiorari, arguing that the Florida Supreme Court contradicted the principles of this Court’s decision in Fiore v. White, 531 U. S. 225 (2001) (per curiam), when it failed to determine whether the “common pocketknife” exception to Florida’s definition of a ‘“[w]eapon’” encompassed Bunkley’s pocketknife at the time that his conviction became final in 1989. Fla. Stat. §790.001(13) (2000). We agree, and therefore grant Bunkley’s motion to proceed in forma pauperis and his petition for a writ of certiorari.

1=1

In the early morning hours of April 16,1986, Bunkley burglarized a closed, unoccupied Western Sizzlin’ Restaurant. Report and Recommendation in No. 91-113-CIV-T-99(B) (MD Fla.), p. 1. The police arrested him after he left the restaurant. At the time of his arrest, the police discovered a “pocketknife, with a blade of 2V¿ to 3 inches in length, . . . folded and in his pocket.” 768 So. 2d 510 (Fla. App. 2000) (per curiam). “There is no evidence indicating Bunkley ever used the pocketknife during the burglary, nor that he threatened anyone with the pocketknife at any time.” Ibid.

Bunkley was charged with burglary in the first degree because he was armed with a “dangerous weapon” — namely, the pocketknife. Fla. Stat. § 810.02(2)(b) (2000). The punishment for burglary in the first degree is “imprisonment for a term of years not exceeding life imprisonment.” §810.02(2). If the pocketknife had not been classified as a “dangerous weapon,” Bunkley would have been charged with burglary in the third degree. See 833 So. 2d 739, 742 (Fla. 2002). Burglary in the third degree is punishable “by a term of imprisonment not exceeding 5 years.” Fla. Stat. § 775.082(3)(d) (2002); see also 833 So. 2d, at 742. Bunkley was convicted of burglary in the first degree. He was sentenced to life imprisonment. In 1989, a Florida appellate court affirmed Bunkley’s conviction and sentence. See 539 So. 2d 477.

Florida law defines a “ ‘[wjeapon’ ” to “mea[n] any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.” §790.001(13). Florida has excepted the “ ‘common pocketknife’ ” from its weapons statute since 1901, and the relevant language has remained unchanged since that time. See 833 So. 2d, at 743.

In 1997, the Florida Supreme Court interpreted the meaning of the “common pocketknife” exception for the first time. In L. B. v. State, 700 So. 2d 370, 373 (per curiam), the court determined that a pocketknife with a blade of 3% inches “plainly falls within the statutory exception to the definition of ‘weapon’ found in section 790.001(13).” The complete analysis of the Florida Supreme Court on this issue was as follows: “In 1951, the Attorney General of Florida opined that a pocketknife with a blade of four inches in length or less was a ‘common pocketknife.’ The knife appellant carried, which had a 3%-inch blade, clearly fell within this range.” Ibid, (citation omitted). The Florida Supreme Court accordingly vacated the conviction in L. B. because the “knife in question was a ‘common pocketknife’ under any intended definition of that term.” Ibid. Justice Grimes, joined by Justice Wells, wrote an opinion agreeing with the majority’s resolution of the case “[i]n view of the Attorney General’s opinion and the absence of a more definitive description of a common pocketknife.” Ibid.

After the Florida Supreme Court issued its decision in L. B., Bunkley filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 (1999). Bunkley alleged that under the L. B. decision, his pocketknife could not have been considered a “weapon” under §790.001(13). He therefore argued that his conviction for armed burglary was invalid and should be vacated because a “common pocketknife can not [sic] support a conviction involving possession of a weapon.” App. to Pet. for Cert. C-2. The Circuit Court rejected Bunkley’s motion, and the District Court of Appeal of Florida, Second District, affirmed. 768 So. 2d 510 (2000).

The Florida Supreme Court also rejected Bunkley’s claim. It held that the L. B. decision did not apply retroactively. Under Florida law, only “jurisprudential upheavals” will be applied retroactively. 833 So. 2d, at 743 (internal quotation marks omitted). The court stated that a “jurisprudential upheaval is a major constitutional change of law.” Id., at 745 (internal quotation marks omitted). By contrast, any “evolutionary refinements” in the law “are not applied retroactively.” Id., at 744. The court then held that L. B. was an evolutionary refinement in the law, and therefore Bunkley was not entitled to relief. In a footnote, the Florida Supreme Court cited our decision in Fiore v. White, supra, and held without analysis that Fiore did not apply to this case. See 833 So. 2d, at 744, n. 12.

Justice Pariente, joined by Chief Justice Anstead, dissented. She stated that the Florida Supreme Court’s decision in L. B. “should be applied to grant Bunkley collateral relief.” 833 So. 2d, at 746. She criticized the majority opinion for relying solely on a retroactivity question. In her view, “application of the due process principles of Fiore renders a retroactivity analysis . . . unnecessary.” Id., at 747. She noted that even if .L. B. was merely an evolutionary refinement of the law, “the majority offers no precedent laying out the stages of this evolution.” 833 So. 2d, at 747. Because she thought the L. B. decision “correctly stated the law at the time Bunkley’s conviction became final,” she would have vacated Bunkley’s conviction. 833 So. 2d, at 747.

II

Fiore v. White involved a Pennsylvania criminal statute that the Pennsylvania Supreme Court interpreted for the first time after the defendant Fiore’s conviction became final. See 531 U. S., at 226. Under the Pennsylvania Supreme Court’s interpretation of the criminal statute, Fiore could not have been guilty of the crime for which he was convicted. See id., at 227-228. We originally granted certiorari in Fiore to consider “when, or whether, the Federal Due Process Clause requires a State to apply a new interpretation of a state criminal statute retroactively to cases on collateral review.” Id., at 226. “Because we were uncertain whether the Pennsylvania Supreme Court’s decision . .. represented a change in the law,” we certified a question to the Pennsylvania Supreme Court. Id., at 228. This question asked whether the Pennsylvania Supreme Court’s interpretation of the statute “ ‘state [d] the correct interpretation of the law of Pennsylvania at the date Fiore’s conviction became final.’” Ibid.

When the Pennsylvania Supreme Court replied that the ruling “ ‘merely clarified the plain language of the statute/ ” ibid., the question on which we originally granted certiorari disappeared. Pennsylvania’s answer revealed the “simple, inevitable conclusion” that Fiore’s conviction violated due process. Id., at 229. It has long been established by this Court that “the Due Process Clause . . . forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.” Id., at 228-229. Because Pennsylvania law — as interpreted by the later State Supreme Court decision — made clear that Fiore’s conduct did not violate an element of the statute, his conviction did not satisfy the strictures of the Due Process Clause. Consequently, “retroactivity [was] not at issue.” Id., at 226.

Fiore controls the result here. As Justice Pariente stated in dissent, “application of the due process principles of Fiore” may render a retroactivity analysis “unnecessary.” 833 So. 2d, at 747. The question here is not just one of retro-activity. Rather, as Fiore holds, “retroactivity is not at issue” if the Florida Supreme Court’s interpretation of the “common pocketknife” exception in L. B. is “a correct statement of the law when [Bunkley’s] conviction became final.” 531 U. S., at 226. The proper question under Fiore is not whether the law has changed. Rather, Fiore requires that the Florida Supreme Court answer whether, in light of L. B., Bunkley’s pocketknife of 2Vz to 3 inches fit within § 790.001(13)’s “common pocketknife” exception at the time his conviction became final.

Although the Florida Supreme Court has determined that the L. B. decision was merely an “evolutionary refinement” in the meaning of the “common pocketknife” exception, it has not answered whether the law in 1989 defined Bunkley’s 2Vi-to 3-inch pocketknife as a “weapon” under § 790.001(13). Although the L. B. decision might have “culminat[ed].. . [the] century-long evolutionary process,” the question remains about what § 790.001(13) meant in 1989. 833 So. 2d, at 745. If Bunkley’s pocketknife fit within the “common pocketknife” exception to §790.001(13) in 1989, then Bunkley was convicted of a crime for which he cannot be guilty — burglary in the first degree. And if the “stages” of § 790.001(13)’s “evolution” had not sufficiently progressed so that Bunkley’s pocketknife was still a weapon in 1989, this case raises the issue left open in Fiore.

It is true that the Florida Supreme Court held Fiore inapplicable because the L. B. decision was a change in the law which “culminat[ed] [the] century-long evolutionary process.” 833 So. 2d, at 745. As the dissent acknowledges, however, see post, at 843, n. 1, the Florida Supreme Court’s decision in L. B. cast doubt on the validity of Bunkley’s conviction. For the first time, the Florida Supreme Court interpreted the common pocketknife exception, and its interpretation covered the weapon Bunkley possessed at the time of his offense. In the face of such doubt, Fiore entitles Bunkley to a determination as to whether L. B. correctly stated the common pocketknife exception at the time he was convicted. Ordinarily, the Florida Supreme Court’s holding that L. B. constitutes a change in — rather than a clarification of — the law would be sufficient to dispose of the Fiore question. By holding that a change in the law occurred, the Florida Supreme Court would thereby likewise have signaled that the common pocketknife exception was narrower at the time Bunkley was convicted.

Here, however, the Florida Supreme Court said more. It characterized L. B. as part of the “century-long evolutionary process.” 833 So. 2d, at 745. Because Florida law was in a state of evolution over the course of these many years, we do not know what stage in the evolutionary process the law had reached at the time Bunkley was convicted. The Florida Supreme Court never asked whether the weapons statute had “evolved” by 1989 to such an extent that Bunkley’s 2Vz- to 3-inch pocketknife fit within the “common pocketknife” exception. The proper question under Fiore is not just whether the law changed. Rather, it is when the law changed. The Florida Supreme Court has not answered this question; instead, it appeared to assume that merely labeling L. B. as the “culmination” in the common pocketknife exception’s “century-long evolutionary process” was sufficient to resolve the Fiore question. 833 So. 2d, at 745. It is not. Without further clarification from the Florida Supreme Court as to the content of the common pocketknife exception in 1989, we cannot know whether L. B. correctly stated the common pocketknife exception at the time he was convicted.

On remand, the Florida Supreme Court should consider whether, in light of the L. B. decision, Bunkley’s pocketknife of m to 3 inches fit within § 790.001(13)’s “common pocketknife” exception at the time his conviction became final. The judgment of the Supreme Court of Florida, accordingly, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Kennedy and Justice Thomas join,

dissenting.

The Court here makes new law, and does so without briefing or argument. In Fiore v. White, 528 U. S. 23, 29 (1999), we granted certiorari to answer whether due process requires a state court to apply a judicially announced change in state criminal law retroactively. We realized after granting certiorari, however, that we could not answer that question until we knew whether there had been a change in the law at all. We therefore certified a question to the Pennsylvania Supreme Court asking whether its decision in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), was a change in the law from the time of the defendant’s conviction. When the Pennsylvania Supreme Court answered that there had been no change, we acknowledged that there was no question of retroactivity left for us to answer. Fiore v. White, 531 U. S. 225, 226 (2001) (per curiam).

In the present ease, the Court concedes that the Florida Supreme Court acknowledged our opinion in Fiore. The Florida Supreme Court concluded that its decision in L. B. v. State, 700 So. 2d 370 (1997) (per curiam), decided after petitioner’s conviction became final, marked a change in Florida law. 833 So. 2d 739, 744, n. 12 (2002). The state court therefore considered whether the change should be applied retroactively, and concluded that it should not be.

The Court recognizes, as it must, that the Florida Supreme Court concluded that L. B. was a change in the law from the time of petitioner’s conviction. Ante, at 841 (“It is true that the Florida Supreme Court held ... [that] the L. B. decision was a change in the law”). Yet the Court criticizes the Florida Supreme Court for thinking that conclusion “sufficient to dispose of the Fiore question.” Ibid. The Court acknowledges that “[o]rdinarily, the Florida Supreme Court’s holding that L. B. constitutes a change in — rather than a clarification of — the law would be sufficient to dispose of the Fiore question,” but then holds that, because the Florida Supreme Court “characterized L. B. as part of the ‘century-long evolutionary process,’ ” Fiore requires that court to answer an additional question: whether petitioner’s knife fit within the “ ‘common pocketknife’ ” exception at the time of his conviction. Ante, at 841.

Fiore requires no such thing. Fiore asked whether a change had occurred and, upon finding that none had, ended the inquiry. The Court here goes much further. It acknowledges that L. B. neither clarified the law that was in existence at the time of petitioner’s conviction nor changed the law with retroactive effect. Yet it nonetheless insists that the Florida Supreme Court reevaluate the sufficiency of the evidence in this case. See ante, at 840, 842 (holding that Florida Supreme Court must answer whether “Bunkley’s pocketknife ... fit within [Fla. Stat.] §790.001(13)’s ‘common pocketknife’ exception at the time his conviction became final”). The Court announces this conclusion as a matter of “Fiore” without explaining why due process requires it. The Court’s holding is a new one, and its criticism of the state court for failing to anticipate this holding is unjustified. The Florida Supreme Court, moreover, has . essentially answered the question on which the Court now remands.

The Court’s decision to expand Fiore is not only new, it also unjustifiably interferes with States’ interest in finality. The Florida courts have already considered several times the question this Court now asks them to answer. On direct appeal, petitioner specifically argued that a knife with a blade of less than four inches was a “common pocketknife,” and he cited the 1951 opinion letter issued by the Florida Attorney General on this issue. Brief for Appellant in No. 88-1376 (Fla. Dist. Ct. App.), pp. 5-6. Petitioner also filed two motions for state postconviction relief challenging the sufficiency of the evidence with respect to the jury’s conclusion that he was armed with a dangerous weapon. See Motion to Set Aside or Vacate Judgment and Sentence in No. 86-1070-CF-A-N1 (Fla. Cir. Ct.), p. 4; Petition to Invoke “All Writs” Jurisdiction in No. 85-778 (Fla. Sup. Ct.), p. 4.

Florida has established a 2-year period of limitations for filing motions for postconviction relief. Florida Rule of Criminal Procedure 3.850 “provides an exception to the two-year time limitation for filing postconviction motions where ‘a fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.’ ” 768 So. 2d 510, 511 (Fla. App. 2000) (per curiam) (quoting Fla. Rule Crim. Proc. 3.850(b)(2) (2000)). The Court’s decision here overrides Florida’s Rule, authorizing claims for postconviction relief where there has been a change in the law that has specifically been held not to apply retroactively.

The Court’s holding expanding Fiore is striking, and the Court’s decision to adopt it summarily is even more so. I would deny the petition for writ of certiorari.

      The dissent claims that the Florida Supreme Court did not need to decide anything other than whether L. B. was a change in the law. See ;post, at 845 (citing Fla. Rule Crim. Proc. 3.850(b)(2) (2000)). Yet as the dissent concedes, see post, at 843, the Florida Supreme Court passed upon the Fiore due process inquiry as well as the retroactivity question. The dissent also notes that Bunkley has raised the issue of the common pocketknife in prior appeals. These appeals, however, were filed prior to the Florida Supreme Court’s opinion in L. B. And we agree with the dissent that absent the L. B. decision, Bunkley would not be able to pursue his claim now. The Florida Supreme Court committed an error of law here by not addressing whether the L. B. decision means that at the time Bunk-ley was convicted, he was convicted of a crime — armed burglary — for which he may not be guilty. Therefore, Michigan v. Long, 468 U. S. 1032 (1983), has no applicability here.

       Petitioner presents strong arguments in favor of his view that the bright-line rule set out in L. B. existed as a matter of Florida law at the time of his conviction. Pet. for Cert. 6. But the Florida Supreme Court concluded otherwise, and we may not revisit that question.

       The Court further criticizes the Florida Supreme Court for its workmanship in the decision under review. Thus, while it recognizes the Florida court’s conclusion that L. B. did not state the law at the time of petitioner’s conviction, the Court reprimands the Florida court for failing to reach its holding in a sufficiently clear manner. See, e. g., ante, at 842 (“Without further clarification from the Florida Supreme Court ... we cannot know whether L. B. correctly stated the common pocketknife exception at the time [petitioner] was convicted”). This rebuke to the state court violates the well-established rule that this Court will not “require state courts to reconsider cases to clarify the grounds of their decisions.” Michigan v. Long, 463 U. S. 1082, 1040 (1983); see also id., at 1041 (noting the Court’s desire to “avoi[d] the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court”).

       Petitioner also unsuccessfully raised this claim twice in Federal District Court. See Report and Recommendation in No. 91-113-CIV-T-99(B) (MD Fla.), p. 5; Memorandum of Law in Support of Petition for Writ of Habeas Corpus under U. S. C. Section 2254 in No. 96-405-Civ.-T-24C (MD Fla.), p. 5.


text:
    March 7, 2003
    No. 02-990.
    Volkswagen of America, Inc., et al. v. Gentry et al.
   Ct. App. Ga. Certiorari dismissed under this Court’s Rule 46.


text:
    No. 02-479.
    Medical Board of California v. Hason.
   C. A. 9th Cir. [Certiorari granted, 537 U. S. 1028.] Case removed from argument calendar for Tuesday, March 25, 2003.


text:
    No. 02-5664.
    Sell v. United States.
   C. A. 8th Cir. [Cer-tiorari granted, 537 U. S. 999.] Motion of the Solicitor General for leave to file a supplemental brief in excess of the page limit granted.


text:
    March 10, 2003
    No. 01-1487.
    Mayle, Warden, et al. v. Brown et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lockyer v. Andrade, ante, p. 63.


text:
    No. 01-9879.
    Herbert v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Clay v. United States, 537 U. S. 522 (2003).


text:
    No. 01-10898.
    Sifford v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for farther consideration in light of Clay v. United States, 537 U. S. 522 (2003).


text:
    No. 02-127.
    McGrath, Warden, et al. v. Chia.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lockyer v. Andrade, ante, p. 63.


text:
    No. 02-6427.
    Simboli v. Crosby, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Clay v. United States, 537 U. S. 522 (2003).


text:
    No. 02-7089.
    Quick v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Clay v. United States, 537 U. S. 522 (2003).


text:
    No. 02-8408.
    Eury v. Hamilton et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02-8409.
    Eury v. Rountree et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02-8417.
    Eury v. Goins et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02A624.
    Giles v. Ashcroft, Attorney General.
   C. A. 9th Cir. Application for stay, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. D-2346.
    In re Sullivan.
   Charles W. Sullivan, of New York, N. Y., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The rule to show cause, issued on February 24, 2003 [537 U. S. 1184], is discharged.


text:
    No. D-2347.
    In re Discipline of Caldwell.
   David Caldwell, of Dallas, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2348.
    In re Discipline of Appleberry.
   Miles Hartman Appleberry, of San Antonio, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2349.
    In re Discipline of Daneri.
   Edward Nicholas Daneri, of San Antonio, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2350.
    In re Discipline of Carsey.
   Steven M. Car-sey, of Fort Worth, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2351.
    In re Discipline of Layer.
   Ronald Bruce Layer, of San Antonio, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2352.
    In re Discipline of Monahan.
   Dennis Francis Monahan, of Medway, Mass., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2353.
    In re Discipline of Gibbons.
   James Anthony Gibbons, of Clinton, Mass., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 02M64.
    No. 02M65.
    Beaty v. Ryan, Acting Director, Arizona Department of Corrections; and Mehta v. Konica Business Machines USA Inc.
   Motions to direct the Clerk to file petitions for writs of certiorari out of time denied.


text:
    No. 02-94.
    Overton, Director, Michigan Department of Corrections, et al. v. Bazzetta et al.
   C. A. 6th Cir. [Cer-tiorari granted, 537 U. S. 1043.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 02-102.
    Lawrence et al. v. Texas.
   Ct. App. Tex., 14th Dist. [Certiorari granted, 537 U. S. 1044.] Motion of Center for Law and Justice International for leave to file a brief as amicus curiae granted.


text:
    No. 02-241.
    Grutter v. Bollinger et al.
   C. A. 6th Cir. [Certiorari granted, 537 U. S. 1043.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of Exxon Mobil Corp. for leave to file a brief as amicus curiae granted. Motion of respondents Kimberly James et al. for enlargement of argument time and for divided argument, or in the alternative, for divided argument denied.


text:
    No. 02-516.
    Gratz et al. v. Bollinger et al.
   C. A. 6th Cir. [Certiorari granted, 537 U. S. 1044.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of Exxon Mobil Corp. for leave to file a brief as amicus curiae granted. Motion of respondents Ebony Patterson et al. for additional argument time and for divided argument, or in the alternative, for divided argument denied.


text:
    No. 02-634.
    Green Tree Financial Corp., nka Conseco Finance Corp. v. Bazzle et al., in a Representative Capacity on Behalf of a Class and for All Others Similarly Situated, et al.
   Sup. Ct. S. C. [Certiorari granted, 537 U. S. 1098.] Motion of Washington Legal Foundation for leave to file a brief as amicus curiae granted.


text:
    No. 02-722.
    American Insurance Assn. et al. v. Garamendi, Insurance Commissioner, State of California.
   C. A. 9th Cir. [Certiorari granted sub nom. American Insurance Assn. v. Low, 537 U. S. 1100.] Motion of Mitsubishi Materials Corp. et al. for leave to file a brief as amici curiae granted.


text:
    No. 02-857.
    Household Credit Services, Inc., et al. v. Pfennig.
   C. A. 6th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 02-8412.
    In re Collins et al.
   Petition for writ of mandamus denied.


text:
    No. 02-693.
    Lamie v. United States Trustee.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 02-628.
    Frew, on Behalf of Her Daughter, Frew, et al. v. Hawkins, Commissioner, Texas Health and Human Services Commission, et al.
   C. A. 5th Cir. Certiorari granted limited to Questions 1 and 2 presented by the petition.


text:
    No. 02-682.
    Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP.
   C. A. 2d Cir. Certiorari granted limited to the following question: “Did the Court of Appeals err in reversing the District Court’s dismissal of respondent’s antitrust claims?”


text:
    No. 02-6320.
    Fellers v. United States.
   C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 01-8816.
    Bowen v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 01-8819.
    MacPheat v. Mazurek et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 01-9877.
    Jackson v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 01-10226.
    Matthews v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 01-10402.
    Harris v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 01-10832.
    Wright v. Crosby, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-639.
    Anderson et al. v. Treadwell, Secretary of State of New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-651.
    Rodriguez v. Farrell et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-750.
    Rogers Machinery Co., Inc. v. Washington County, Oregon, et al.
   Ct. App. Ore. Certiorari denied.


text:
    No. 02-754.
    Griffis v. Luban.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 02-834.
    Jericol Mining Inc. et al. v. Napier et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 02-850.
    Rancho Lobo, Ltd. v. DeVargas et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 02-859.
    Vaile v. Porsboll, fka Vaile, et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 02-862.
    Boise Cascade Corp. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 02-864.
    Alabama v. Bryant.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 02-876.
    Ballard et al. v. Advance America et al.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 02-896.
    Fluor Hanford, Inc., et al. v. Brundridge et al.
   Ct. App. Wash. Certiorari denied.


text:
    No. 02-914.
    City of Mayfield Heights, Ohio, et al. v. Shemo, Trustee, et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 02-997.
    Montalvo et al. v. Borkovec et al.
   Ct. App. Wis. Certiorari denied.


text:
    No. 02-1001.
    Messina v. John Labatt Ltd. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 02-1002.
    Nicklas v. Eagle et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 02-1004.
    Elvin et al. v. Superior Court of California, San Francisco County.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 02-1005.
    Searles et al. v. Patel.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 02-1008.
    Nartron Corp. v. STMicroelectronics, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 02-1009.
    Scicchitano et al., By and Through Their Parents and Natural Guardians, Scicchitano et ux., et al. v. Mount Carmel, Pennsylvania, Area School Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-1013.
    Bau v. Actamed Corp.
   Ct. App. Ga. Certio-rari denied.


text:
    No. 02-1014.
    Brassica Protection Products LLC et al. v. Sunrise Farms et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 02-1017.
    Tri-County Concerned Citizens Assn. et al. v. Carr et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-1020.
    Horton v. City Colleges of Chicago et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 02-1021.
    Harper v. Alabama Personnel Board et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-1022.
    Farrow v. American Postal Workers et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-1023.
    Mulcahey v. Euro General Contractors et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-1026.
    Miller v. Southwestern Bell Telephone Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-1029.
    Snohomish County, Washington, et al. v. Gobin et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-1031.
    Scher v. Pennsylvania.
   Sup. Ct. Pa. Certio-rari denied.


text:
    No. 02-1039.
    Brown v. Li et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-1046.
    Dacosta v. Nwachukwa.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 02-1052.
    Medved v. Workers’ Compensation Appeal Board (Albert Gallatin Services).
   Commw. Ct. Pa. Cer-tiorari denied.


text:
    No. 02-1064.
    Roehsler v. Middlesex County Health Department.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 02-1079.
    Mayer et al. v. Transamerica Title Insurance Co., nka Transnation Title Insurance Co., et al.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 02-1082.
    Cartwright et al. v. Perdue, Governor of Georgia, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-1089.
    Lewis et al. v. Stolle et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 02-1165.
    Stewart v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-5487.
    Shepard v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 02-6141.
    Scoggins v. California.
   Sup. Ct. Cal. Cer-tiorari denied.


text:
    No. 02-6235.
    Johnson v. Louisiana.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 02-6296.
    Rankins v. Carey, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-6422.
    Rogers v. Yarborough, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-6435.
    Hyatt v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 02-6603.
    Rios v. Alameida, Director, California Department of Corrections.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-6698.
    Hughes v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 02-6725.
    Pagtalunan v. Galaza, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-7006.
    Pimpton v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 02-7654.
    Sanchez-Sanchez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-7813.
    Araujo v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 02-7868.
    Hernandez et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-7916.
    Yates v. United States.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 02-7936.
    Kurdyukov v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-7937.
    Marinich v. Peoples Gas Light & Coke Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 02-7956.
    Wang v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-8279.
    Dopp v. Harkins, Sheriff, Ottawa County, Oklahoma, et al.
   Ct. Civ. App. Okla. Certiorari denied.


text:
    No. 02-8284.
    McLeod v. Sessions, Warden.
   Super. Ct. Washington County, Ga. Certiorari denied.


text:
    No. 02-8285.
    Correoso Bonard v. Florida.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8288.
    Teague v. Wolfe et al.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 02-8289.
    Abdullah v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 02-8290.
    Darby v. Cain, Warden.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 02-8293.
    DeVaughn v. Dove, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 02-8295.
    Dudley v. Jones, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8297.
    Hooks v. Ciccolini et al.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 02-8300.
    Gladney v. Pendleton Correctional Facility et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 02-8307.
    Scott v. Adult Protective Services et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-8309.
    Arnold v. Hall, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8312.
    Francis v. Brown, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-8313.
    Terry v. Compton et al.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 02-8314.
    VonBorstel v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 02-8318.
    Chipp v. Crosby, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8320.
    Dehoney v. Montgomery, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 02-8335.
    Elrawi v. California.
   Sup. Ct. Cal. Certio-rari denied.


text:
    No. 02-8350.
    Weaver v. Texas.
   Ct. Crim. App. Tex. Cer-tiorari denied.


text:
    No. 02-8352.
    Willis v. Cockrell, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-8353.
    Williams v. Thompson, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8354.
    Wilson v. Beck et al.
   C. A. 11th Cir. Certio-rari denied.


text:
    No. 02-8355.
    Witherow v. Meligan, Warden.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 02-8358.
    Simpson et al. v. Idaho.
   Ct. App. Idaho. Cer-tiorari denied.


text:
    No. 02-8360.
    Marshall v. Hendricks et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-8361.
    Clay v. Cockrell, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-8362.
    Whitson v. Marriott Pavilion Hotel et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 02-8366.
    Pagan v. Goord, Commissioner, New York State Department of Correctional Services.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-8369.
    Cash v. Yukins, Warden.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 02-8371.
    Lewis v. Holder.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8376.
    Thomas v. Crosby, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8381.
    Vogel v. Arizona.
   Ct. App. Ariz. Certiorari denied.


text:
    No. 02-8383.
    Barksdale v. Johnson, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 02-8386.
    Grubor v. Grubor.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 02-8390.
    Jones v. Riley et al.
   C. A. 11th Cir. Certio-rari denied.


text:
    No. 02-8391.
    Edmond v. Hancock et al.
   Ct. App. Miss. Certiorari denied.


text:
    No. 02-8393.
    Daniels v. Shannon, Superintendent, State Correctional Institution at Mahanoy, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-8394.
    Bishop v. Streefkirk et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8395.
    Bishop v. Scott et ux.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 02-8397.
    Celaj v. Greiner, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-8398.
    Cuevas Cardenas v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 02-8400.
    Dedmon v. Yarborough, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-8402.
    Bailey v. Blaine, Superintendent, State Correctional Institution at Greene.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 02-8403.
    Allen, aka Gonzalez v. Crawford, Director, Nevada Department of Corrections, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-8404.
    Musayev v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 02-8407.
    Claiborne v. Irwin.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 02-8410.
    Dell v. Straub, Warden.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 02-8415.
    DeLoatch v. Johnson, Superintendent, State Correctional Institution at Pittsburgh.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-8424.
    Chapey v. Kemna, Superintendent, Crossroads Correctional Center.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 02-8467.
    Glean v. Sikes, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8472.
    Li v. University of Texas Health Science Center at Houston et al.
   Ct. App. Tex., 1st Dist. Certio-rari denied.


text:
    No. 02-8484.
    Clarke v. Haworth.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 02-8486.
    Campbell v. Grayson, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 02-8507.
    Thurston v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 02-8571.
    Scott v. Smith, Warden.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 02-8641.
    Silva v. Kalbac et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 02-8677.
    Gossard v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 02-8682.
    Castaneda-Garcia v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-8683.
    Diez, aka Guzman v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8704.
    Freeman v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8714.
    D’Alessandro v. L. L. Bean, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 02-8723.
    Ayala v. Illinois.
   App. Ct. Ill., 1st Dist. Cer-tiorari denied.


text:
    No. 02-8726.
    Budd v. United States Parole Commission et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-8728.
    McReynolds et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 02-8733.
    Mick v. United States.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 02-8735.
    Gomez-Vazquez, aka Gomez-Vasquez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-8736.
    Addy v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 02-8744.
    London v. Miller, Superintendent, Eastern Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-8750.
    Coger v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 02-8764.
    Benton v. Crist, Attorney General of Florida.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-8783.
    Williams v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.