author: Justice Souter

text:
    BREUER v. JIM’S CONCRETE OF BREVARD, INC.
    No. 02-337.
    Argued April 2, 2003
    Decided May 19, 2003

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

      Donald E. Pinaud, Jr., argued the cause for petitioner. With him on the briefs was Eric Schnapper.

      Andrew S. Hament argued the cause for respondent. With him on the brief was Gregory Williamson.

      Lisa S. Blatt argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Howard M. Radzely, Allen H. Feldman, and Edward D. Sieger.

      Briefs of amici curiae urging affirmance were filed for the Academy of Florida Management Attorneys, Inc., by Peter W Zinober; and for the Human Resource Association of Palm Beach County, Florida, et al. by Christine D. Hanley, Sally Still, and Betty L. Dunkum.

   Justice Souter

delivered the opinion of the Court.

The question is whether the provision of the Fair Labor Standards Act of 1938 (FLSA or Act), that suit under the Act “may be maintained ... in any Federal or State court of competent jurisdiction,” 52 Stat. 1069, as amended, 29 U. S. C. § 216(b), bars removal of a suit from state to federal court. We hold there is no bar.

I

Petitioner, Phillip T. Breuer, sued respondent, his former employer, Jim’s Concrete of Brevard, Inc., in a state court of Florida for unpaid wages, liquidated damages, prejudgment interest, and attorney’s fees. Section 216(b) provides not only that an employer who violates its minimum wage and overtime provisions is liable to an employee, but that “[a]n action to recover the liability prescribed . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction.”

Jim’s Concrete removed the case to the United States District Court for the Middle District of Florida under 28 U. S. C. § 1441(a), which reads that “[ejxcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Breuer sought an order remanding the case to state court, arguing that removal was improper owing to the FLSA’s provision that an action “may be maintained” in any state court, a provision that Breuer put forward as an express exception to the general authorization of removal under § 1441(a). Though the District Court denied Breuer’s motion, it certified the issue for interlocutory appeal under § 1292(b). The Eleventh Circuit affirmed, saying that Congress had expressly barred removal in “direct, unequivocal language” in other statutes, 292 F. 3d 1308, 1310 (2002), but was not comparably prohibitory in § 216(b). The Eleventh Circuit thus joined the First, see Cosme Nieves v. Deshler, 786 F. 2d 445 (1986), but placed itself at odds with the Eighth, see Johnson v. Butler Bros., 162 F. 2d 87 (1947) (denying removability under FLSA). We granted certiorari to resolve the conflict, 537 U S. 1099 (2003), and now affirm.

II

A

There is no question that Breuer could have begun his action in the District Court. The FLSA provides that an action “may be maintained ... in any Federal or State court of competent jurisdiction,” 29 U. S. C. § 216(b), and the district courts would in any event have original jurisdiction over FLSA claims under 28 U. S. C. § 1331, as “arising under the Constitution, laws, or treaties of the United States,” and § 1337(a), as “arising under any Act of Congress regulating commerce.” Removal of FLSA actions is thus prohibited under § 1441(a) only if Congress expressly provided as much.

Nothing on the face of 29 U. S. C. § 216(b) looks like an express prohibition of removal, there being no mention of removal, let alone of prohibition. While § 216(b) provides that an action “may be maintained ... in any ... State court of competent jurisdiction,” the word “maintain” enjoys a breadth of meaning that leaves its bearing on removal ambiguous at best. “To maintain an action” may mean “to continue” to litigate, as opposed to “commence” an action. Black’s Law Dictionary 1143 (3d ed. 1933). But “maintain” in reference to a legal action is often read as “bring” or “file”; “[t]o maintain an action or suit may mean to commence or institute it; the term imports the existence of a cause of action.” Ibid.; see 1A J. Moore et al., Moore’s Federal Practice ¶0.167[5], p. 472 (2d ed. 1996) (calling the “‘may be maintained’ ” language an “ambiguous phrase” and “certainly not an express provision against removal within the meaning of §1441”); 14C C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3729, p. 235 (1998) (referring to “use of the ambiguous term ‘maintain’ in the statute”). The most, then, that Breuer can claim simply from the use of the term “maintain” is that any text, even when ambiguous, that might be read as inconsistent with removal is an “express” prohibiting provision under the statute. But if an ambiguous term like “maintain” qualified as an express provision for purposes of 28 U. S. C. § 1441(a), then the requirement of an “expres[s] provision]” would call for nothing more than a “provision,” pure and simple, leaving the word “expressly” with no consequence whatever. “[E]xpres[s] provision]” must mean something more than any verbal hook for an argument.

The need to take the express exception requirement seriously is underscored by examples of indisputable prohibitions of removal in a number of other statutes. Section 1445, for example, provides that

“(a) A civil action in any State court against a railroad or its receivers or trustees . . . may not be removed to any district court of the United States.
“(b) A civil action in any State court against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments . . . may not be removed to any district court of the United States unless the matter in controversy exceeds $10,000, exclusive of interest and costs.
“(c) A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.
“(d) A civil action in any State court arising under ... the Violence Against Women Act of 1994 may not be removed to any district court of the United States.”

See also 15 U. S. C. § 77v(a) (“[N]o case arising under [the Securities Act of 1933] and brought in any State court of competent jurisdiction shall be removed to any court of the United States”); § 1719 (“No case arising under [the Interstate Land Sales Full Disclosure Act] and brought in any State court of competent jurisdiction shall be removed to any court of the United States, except where the United States or any officer or employee of the United States in his official capacity is a party”); § 3612 (“No case arising under [the Condominium and Cooperative Abuse Relief Act of 1980] and brought in any State court of competent jurisdiction shall be removed to any court of the United States, except where any officer or employee of the United States in his official capacity is a party”). When Congress has “wished to give plaintiffs an absolute choice of forum, it has shown itself capable of doing so in unmistakable terms.” Cosme Nieves, 786 F. 2d, at 451. It has not done so here.

B

None of Breuer’s refinements on his basic argument from the term “maintain” puts him in a stronger position. He goes on to say, for example, that interpretation does not stop at the dictionary, and he argues that the statutory phrase “may be maintained” shows up as sufficiently prohibitory once it is coupled with a federal policy of construing removal jurisdiction narrowly. Breuer relies heavily on our statement in Shamrock Oil & Gas Corp. v. Sheets, 318 U. S. 100 (1941), that “the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of [removal legislation] .... ‘Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits ... the statute has defined.’ ” Id., at 108-109 (quoting Healy v. Ratta, 292 U. S. 263, 270 (1934)). But whatever apparent force this argument might have claimed when Shamrock was handed down has been qualified by later statutory development. At the time that case was decided, § 1441 provided simply that any action within original federal subject-matter jurisdiction could be removed. Fourteen years later, however, it was amended into its present form, requiring any exception to the general removability rule to be express. See Act of June 25, 1948, § 1441(a), 62 Stat. 937 (authorizing removal over civil suits within the district courts’ original jurisdiction “[e]xcept as otherwise expressly provided by Act of Congress”); see also 28 U. S. C. § 1441 (historical and revision notes). Since 1948, therefore, there has been no question that whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception. As Shamrock itself said, “the language of the Act. .. evidenced] the Congressional purpose,” 313 U. S., at 108, and congressional insistence on express exception is hardly satisfied by the malleability of the term “maintain” in the text Breuer relies upon.

Nor does it do Breuer any good to emphasize a sense of “maintain” as implying continuation of an action to final judgment, so as to give a plaintiff who began an action the statutory right under 29 U. S. C. § 216(b) to see it through. We may concede that it does, and the concession leaves the term “maintain” just as ambiguous as ever on the issue before us. The right to maintain an action may indeed be a right to fight to the finish, but removal does nothing to defeat that right; far from concluding a case before final judgment, removal just transfers it from one forum to another. As between a state and a federal forum, the statute seems to betray an indifference, with its provision merely for maintaining action “in any Federal or State Court,” ibid.

But even if the text of § 216(b) were not itself reason enough to doubt that the provision conveys any right to remain in the original forum, the implication of Breuer’s position would certainly raise misgivings about his point. For if the phrase “[a]n action ... may be maintained” meant that a plaintiff could insist on keeping an FLSA case wherever he filed it in the first place, it would seem that an FLSA case brought in a federal district court could never be transferred to a different one over the plaintiff’s objection, a result that would plainly clash with the provision for change of venue, 28 U. S. C. § 1404(a) (“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought”).

It is, finally, a like concern about consequences that leaves us with fatal reservations about Breuer’s pragmatic appeal that, many claims under the FLSA are for such small amounts that removal to a sometimes distant federal court may make it less convenient and more expensive for employees to vindicate their rights effectively. This may often be true, but even if its truth somehow justified winking at the ambiguity of the term “maintain,” the implications would keep us from going Breuer’s way. A number of other statutes incorporate or use the same language as § 216(b), see 29 U. S. C. § 626(b) (providing that the Age Discrimination in Employment Act of 1967 “shall be enforced in accordance with the powers, remedies, and procedures provided in” § 216(b) and other sections of the FLSA); § 2005(c)(2) (“An action to recover the liability prescribed [under the Employee Polygraph Protection Act of 1988] in paragraph (1) may be maintained against the employer in any Federal or State court of competent jurisdiction”); § 2617(a)(2) (“An action to recover the damages or equitable relief [under the Family and Medical Leave Act of 1998] prescribed in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees”). Breuer, then, cannot have a removal exception for the FLSA without entailing exceptions for other statutory actions, to the point that it becomes just too hard to believe that a right to “maintain” an action was ever meant to displace the right to remove.

III

Breuer scase was properly removed under 28 U. S. C. § 1441, and the judgment of the Eleventh Circuit is affirmed.

It is so ordered.

       Actually, there is reason to think that this sense of “maintain” was intended. Under the FLSA, the Secretary of Labor may file a suit on behalf of an employee to recover unpaid wages or overtime compensation, and when the Secretary files such a suit, an employee’s right to bring a comparable action terminates, see, e.g., 29 U. S. C. § 216(c). Congressional reports suggest that although an employee may no longer initiate a new action once the Secretary has sued, an employee may continue to litigate, i. e., “maintain,” an action already pending. See H. R. Conf. Rep. No. 327, 87th Cong., 1st Sess., 20 (1961) (filing of the Secretary’s complaint would “not, however, operate to terminate any employee’s right to maintain such a private suit to which he had become a party plaintiff before the Secretary’s action”); S. Rep. No. 145, 87th Cong., 1st Sess., 39 (1961) (Secretary’s filing of complaint “terminates the rights of individuals to later file suit”); cf. Smallwood v. Gallardo, 275 U. S. 56, 61 (1927) (“To maintain a suit is to uphold, continue on foot and keep from collapse a suit already begun”). Seen in this light, Congress’s use of the term “maintain” is easy to understand, carrying no implication for removal.

       As to individual cases brought before the institution of any suit by the Government, see n. 1, supra.

       Breuer points to two nonjudicial authorities that do nothing to assuage our skepticism. He calls our attention to the position taken by the Administrator of the Wage and Hour Division, United States Department of Labor, in an amicus brief filed before the Eighth Circuit in Johnson v. Butler Bros., 162 F. 2d 87 (1947), arguing that the text of the FLSA and the policies motivating its passage demonstrate that FLSA actions may not be removed to federal court. But this brief is not persuasive authority. The Secretary has no responsibility for applying the removal statute and no particular authority to interpret it; the Secretary’s opinion cannot make up for the absence of express statutory language. Breuer also points to a Senate Report accompanying the 1958 enactment of 28 U. S. C. §1445, a provision barring removal of workers’ compensation actions under state law. Referring to actions brought under the FLSA, the report states “[i]f filed in the State courts the law prohibits removal to the Federal court.” S. Rep. No. 1830, 85th Cong., 2d Sess., 9 (1958). But a stray comment in a congressional report stands a long way from an express statutory provision.


source: Caselaw Access Project

author:
      Justice Ginsburg
      Justice Stevens,

license: Public Domain

text:
    INYO COUNTY, CALIFORNIA, et al. v. PAIUTE-SHOSHONE INDIANS OF THE BISHOP COMMUNITY OF THE BISHOP COLONY et al.
    No. 02-281.
    Argued March 31, 2003
    Decided May 19, 2003

      Ginsburg, 1, delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter,. Thomas, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 713.

      John Douglas Kirby argued the cause for petitioners. With him on the briefs was Paul N. Bruce.

      Barbara McDowell argued the cause for the United States as amicus curiae. With her on the brief were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Clark, Elizabeth Ann Peterson, and Ethan G. Shenkman.

      Reid Peyton Chambers argued the cause for respondents. With him on the brief were Anne D. Noto, Colin Cloud Hampson, Arthur Lazarus, Jr., and James T. Megg esto.

      Briefs of amici curiae urging reversal were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, Solicitor General, Richard M. Frank, Chief Assistant Attorney General, Robert L. Mukai, Senior Assistant Attorney General, Sara J. Drake, Supervising Deputy Attorney General, and Marc A Le Forestier, Deputy Attorney General, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Richard Blu-menthal of Connecticut, Charlie Crist of Florida, Thomas J. Miller of Iowa, Phill Kline of Kansas, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, and Mark L. Shurt-leff of Utah; for Los Angeles County District Attorney Steve Cooley et al. by Mr. Cooley, pro se, George M. Palmer, Roberta Schwartz, and Brent Dail Riggs; for the California State Sheriffs’ Association by Paul R. Coble and Martin J. Mayer; and for the National Sheriffs’ Association et al. by John J. Brandi.

      Briefs of amici curiae urging affirmance were filed for the National Congress of American Indians et al. by Riyaz A Kanji, Kaighn Smith, Jr., and Ian Heath Gershengorn; and for United South and Eastern Tribes, Inc., by William IK Taylor III, Eleanor H. Smith, and David A Reiser.

      A brief of amici curiae was filed for the State of New Mexico et al. by Patricia A. Madrid, Attorney General of New Mexico, Stuart M. Blue-stone, Deputy Attorney General, Christopher D. Coppin, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Mike McGrath of Montana, and Christine 0. Gregoire of Washington.

   Justice Ginsburg

delivered the opinion of the Court.

This case stems from a California county’s investigation of Native American tribe members for alleged off-reservation crimes. Pursuing the investigation, county law enforcement officers executed a state-court warrant for casino employment records kept by the Tribe on its reservation. The Tribe sued Inyo County (County), the District Attorney, and the Sheriff in federal court, asserting sovereign immunity from state-court processes and seeking declaratory, injunc-tive, and monetary relief.

The parties and, as amicus curiae, the United States agree that a Native American Tribe, like a State of the United States, is not a “person” subject to suit under 42 U. S. C. § 1983. We hold that, in the situation here presented, the Tribe does not qualify as a “person” who may sue under §1983. Whether the Tribe’s suit qualifies for federal-court jurisdiction because it arises under some federal law other than § 1983 is an issue the parties have not precisely addressed, and the trial and appellate courts have not clearly decided. We therefore remand the case for close consideration and specific resolution of that threshold question.

I

The Bishop Paiute Tribe is a federally recognized tribe located on the Bishop Paiute Reservation in California. The Bishop Paiute Gaming Corporation, chartered and wholly owned by the Tribe, operates and manages the Paiute Palace Casino (Casino), a tribal gaming operation run under the Indian Gaming Regulatory Act, 102 Stat. 2467, 25 U. S. C. § 2701 et seq.

In March 1999, the Inyo County Department of Health and Human Services (Department) received information from the State Department of Social Services indicating that three Casino employees had failed to report Casino earnings on their applications for state welfare benefits. Brief for Petitioners 4-5. According to the County, the employees failed to respond when the Department requested that they reconcile the apparent discrepancies between their Casino earnings and their welfare application forms. Id., at 5. The Department then forwarded the matter to the Inyo County District Attorney’s Office, which, in turn, asked the employees to reconcile the apparent discrepancies. Id., at 6. That request, the County asserts, was also ignored. Ibid.

In February 2000, the District Attorney’s Office asked the Casino for the three employees’ employment records, explaining that it was investigating “alleged welfare fraud.” 291 F. 3d 549, 554 (CA9 2002). The Tribe responded that its privacy policy precluded release of the records without the employees’ consent.

The District Attorney then sought and, on showing probable cause, obtained a search warrant from the Inyo County Superior Court. The warrant authorized a search of the Casino for payroll records of the three employees. On March 23, 2000, the Inyo County Sheriff and the District Attorney executed the warrant. They did so over the objection of tribal officials. Those officials urged that the state court lacked jurisdiction to authorize a search of premises and seizure of records belonging to a sovereign tribe. The Sheriff and the District Attorney, lacking cooperation from the Tribe, cut the locks off the storage facility containing the Casino’s personnel records. The county officials seized time-card entries, payroll registers, and payroll check registers relating to the three employees; the seizure also garnered information contained in quarterly wage and withholding reports the Corporation had submitted to the State. Each item seized contained at least one reference to an employee under investigation.

In July 2000, the District Attorney’s Office asked the Tribe for the personnel records of six other Casino employees. The Tribe reiterated its privacy policy, but offered to accept as evidence of consent a redacted copy of the last page of each employee’s signed welfare application. That page contained a statement that employment records of individuals applying for public assistance were subject to review by county officials. The District Attorney refused the offer.

To ward off any additional searches, the Tribe and the Corporation filed suit in Federal District Court naming as defendants the District Attorney and the Sheriff, in their individual and official capacities, and the County. Asserting federal-question jurisdiction under 28 U. S. C. §§ 1331, 1337, 1343(i)(3)(4), and the “federal common law of Indian affairs,” the Tribe sought injunctive and declaratory relief to vindicate its status as a sovereign immune from state processes under federal law, and to establish that state law was preempted to the extent that it purported to authorize seizure of tribal records. App. 97, ¶ 1, 105-114, ¶¶ 26-53. The Tribe’s complaint also sought relief under 42 U. S. C. § 1983, including compensatory damages. In this regard, the Tribe alleged that by acting beyond the scope of their jurisdiction and “without authorization of law” in executing the warrant, the defendants violated the Tribe’s and Corporation’s Fourth and Fourteenth Amendment rights, and the Tribe’s right to self-government. App. 109, ¶ 38; see id., at 108-110, ¶¶ 33-39.

On November 22, 2000, the District Court, on defendants’ motion, dismissed the Tribe’s complaint. Tribal sovereign immunity, the court held, did not categorically preclude the search and seizure of the Casino’s personnel records. Taking into account the competing interests of the State and the Tribe, the court concluded that, “[i]n the interest of a fair and uniform application of California’s criminal law, state officials should be able to execute search warranty] against the tribe and tribal property.” App. to Pet. for Cert. 62a. The court also held that the District Attorney and the Sheriff had qualified immunity from suit in their individual capacities. Id., at 57a-58a.

The Court of Appeals for the Ninth Circuit reversed the District Court’s judgment dismissing the action. “[Execution of a search warrant against the Tribe,” the Court of Appeals said, “interferes with ‘the right of reservation Indians to make their own laws and be ruled by them.’” 291 F. 3d, at 558 (quoting Williams v. Lee, 358 U. S. 217, 220 (1959)). In the appellate court’s view, the District Court should not have “balanced the interests at stake” to determine whether the warrant was enforceable. 291 F. 3d, at 559. This Court’s precedent, the Ninth Circuit said, advanced “a more categorical approach denying state jurisdiction . . . over a tribe absent á waiver by the tribe or a clear grant of authority by Congress.” Ibid, (citing Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U. S. 450, 458 (1995)).

“[E]ven if a balancing test is the appropriate legal framework,” the Court of Appeals added, “the balance of interests favors a ruling for the Tribe.” 291 F. 3d, at 559. The Tribe’s privacy policies regarding employee records “promote tribal [self-government] interests,” the Ninth Circuit reasoned; notably, those policies fostered “a trusting relationship with tribal members,” and “affect[ed] the Casino, the Tribe’s predominant source of economic development revenue.” Ibid. The appeals court recognized the State’s countervailing “interest in investigating potential welfare fraud,” but thought it incumbent upon the State to further that interest “through far less intrusive means.” Ibid.

The Court of Appeals also ruled that the District Attorney and the Sheriff were not shielded by qualified immunity. “[A] reasonable county officer,” it held, “would have known . . . that seizing tribal property held on tribal land violated the Fourth Amendment because the property and land were outside the officer’s jurisdiction.” Id., at 568. The appeals court acknowledged prior Ninth Circuit precedent holding that the right to tribal self-government is not protected by § 1983. Id., at 568, n. 7 (citing Hoopa Valley Tribe v. Nevins, 881 F. 2d 657 (1989)); see Brief for United States as Amicus Curiae 29, n. 15. But in this case, the Court of Appeals concluded, a §1983 claim could be maintained because the Tribe sought “protection from an unlawful search and seizure,” a right secured by the Fourth Amendment and therefore within §1983’s compass. 291 F. 3d, at 568, and n. 7. On December 2,2002, we granted certiorari. 537 U. S. 1043.

HH h — i

Central to our review is the question whether the Tribe’s complaint is actionable under §1983. That provision permits “citizen[s]” and “other person[s] within the jurisdiction” of the United States to seek legal and equitable relief from “person[s]” who, under color of state law, deprive them of federally protected rights. In Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), this Court held that a State is not a “person” amenable to suit under § 1983. “[I]n enaet-ing § 1983,” the Court said, “Congress did not intend to override well-established immunities or defenses under the common law,” including “[t]he doctrine of sovereign immunity.” Id., at 67. Although this case does not squarely present the question, the parties agree, and we will assume for purposes of this opinion, that Native American tribes, like States of the Union, are not subject to suit under § 1983. See Brief for Petitioners 35-38; Tr. of Oral Arg. 49; Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 754 (1998) (“an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”).

The issue pivotal here is whether a tribe qualifies as a claimant — a “person within the jurisdiction” of the United States — under § 1983. The United States maintains it does not, invoking the Court’s “longstanding interpretive presumption that ‘person’ does not include the sovereign,” a presumption that “may be disregarded only upon some affirmative showing of statutory intent to the contrary.” Brief for United States as Amicus Curiae 7-8 (quoting Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 780-781 (2000)); see Will, 491 U. S., at 64. Nothing in the text, purpose, or history of § 1983, the Government contends, overcomes the interpretive presumption that “‘person’ does not include the sovereign.” Brief for United States as Amicus Curiae 7-8 (some internal quotation marks omitted). Furthermore, the Government urges, given the Court’s decision that “person” excludes sovereigns as defendants under § 1983, it would be anomalous for the Court to give the same word a different meaning when it appears later in the same sentence. Id., at 8; see Brown v. Gardner, 513 U. S. 115, 118 (1994) (the “presumption that a given term is used to mean the same thing throughout a statute” is “surely at its most vigorous when a term is repeated within a given sentence”); cf. Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 397 (1978) (because municipalities are “persons” entitled to sue under the antitrust laws, they are also, in principle, “persons” capable of being sued under those laws).

The Tribe responds that Congress intended § 1983 “to provide a powerful civil remedy ‘against all forms of official violation of federally protected rights.’” Brief for Respondents 45 (quoting Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 700-701 (1978)). To achieve that remedial purpose, the Tribe maintains, § 1983 should be “broadly construed.” Brief for Respondents 45 (citing Monell, 436 U. S., at 684-685 (internal quotation marks omitted)). Indian tribes, the Tribe here asserts, “have been especially vulnerable to infringement of their federally protected rights by states.” Brief for Respondents 42 (citing, inter alia, The Kansas Indians, 5 Wall. 737 (1867) (state taxation of tribal lands); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172 (1999) (state infringement on tribal rights to hunt, fish, and gather on ceded lands); Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30 (1989) (tribal jurisdiction over Indian child custody proceedings); California v. Cabazon Band of Mission Indians, 480 U. S. 202 (1987) (state attempt to regulate gambling on tribal land)). To guard against such infringements, the Tribe contends, the Court should read § 1983 to encompass suits brought by Indian tribes.

As we have recognized in other contexts, qualification of a sovereign as a “person” who may maintain a particular claim for relief depends not “upon a bare analysis of the word ‘person,’” Pfizer Inc. v. Government of India, 434 U. S. 308, 317 (1978), but on the “legislative environment” in which the word appears, Georgia v. Evans, 316 U. S. 159, 161 (1942). Thus, in Georgia, the Court held that a State, as purchaser of asphalt shipped in interstate commerce, qualified as a “person” entitled to seek redress under the Sherman Act for restraint of trade. Id., at 160-163. Similarly, in Pfizer, the Court held that a foreign nation, as purchaser of antibiotics, ranked as a “person” qualified to sue pharmaceuticals manufacturers under our antitrust laws. 434 U. S., at 309-320; cf. Stevens, 529 U. S., at 787, and n. 18 (deciding States are not “person[s]” subject to qui tarn liability under the False Claims Act, but leaving open the question whether they “can be ‘persons’ for purposes of commencing an FCA qui tarn action” (emphasis deleted)); United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001) (“Although we generally presume that identical words used in different parts of the same act are intended to have the same meaning, the presumption is not rigid, and the meaning of the same words well may vary to meet the purposes of the law.” (internal quotation marks, brackets, and citations omitted)).

There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective. It is only by virtue of the Tribe’s asserted “sovereign” status that it claims immunity from the County’s processes. See App. 97-105, ¶¶ 1-25, 108-110, ¶¶ 33-39; 291 F. 3d, at 554 (Court of Appeals “find[s] that the County and its agents violated the Tribe’s sovereign immunity when they obtained and executed a search warrant against the Tribe and tribal property.” (emphasis added)). Section 1983 was designed to secure private rights against government encroachment, see Will, 491 U. S., at 66, not to advance a sovereign’s prerogative to withhold evidence relevant to a criminal investigation. For example, as the County acknowledges, a tribal member complaining of a Fourth Amendment violation would be a “person” qualified to sue under § 1983. See Brief for Petitioners 20, n. 7. But, like other private persons, that member would have no right to immunity from an appropriately executed search warrant based on probable cause. Accordingly, we hold that the Tribe may not sue under § 1983 to vindicate the sovereign right it here claims.

HH H-i > — <

In addition to §1983, the Tribe asserted as law under which its claims arise the “federal common law of Indian affairs.” Supra, at 706 (quoting App. 97, ¶ 1). But the Tribe has not explained, and neither the District Court nor the Court of Appeals appears to have carefully considered, what prescription of federal common law enables a tribe to maintain an action for declaratory and injunctive relief establishing its sovereign right to be free from state criminal processes. In short, absent §1983 as a foundation for the Tribe’s action, it is unclear what federal law, if any, the Tribe’s case “aris[es] under.” 28 U. S. C. § 1331. We therefore remand for focused consideration and resolution of that jurisdictional question.

* * *

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.

Justice Stevens,

concurring in the judgment.

In my judgment a Native American tribe is a “person” who may sue under 42 U. S. C. § 1983. The Tribe’s complaint, however, does not state a cause of action under § 1983 because the county’s alleged infringement of the Tribe’s sovereign prerogatives did not deprive the Tribe of “rights, privileges, or immunities secured by the Constitution and laws” within the meaning of § 1983. At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe’s complaint rests on the judge-made doctrine of tribal immunity — a doctrine that “developed almost by accident.” Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998). Because many applications of that doctrine are both anomalous and unjust, see id., at 760, 764-766 (Stevens, J., dissenting), I would not accord it the same status as the “laws” referenced in § 1983.

It is demeaning to Native American tribes to deny them the same access to a § 1983 remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of § 1983— which provides that §1983 defendants are “person[s] who, under color of [State law,]” subject any “other person” to a deprivation of a federal right — adequately explains why a tribe is not a person subject to suit under § 1983. For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an “other person” who may bring a § 1983 suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word “person” as used in federal statutes, as well as the specific remedial purpose of § 1983, support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.

In this case, however, the Tribe’s allegations do not state a cause of action under § 1983. The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 711 (“There is in this casé no allegation that the County lacked probable cause or that the warrant was otherwise defective”). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See ibid. That sort of claim to special privileges, which is based entirely on the Tribe’s sovereign status, is not one for which the § 1983 remedy was enacted.

Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court’s opinion.

       The United States maintains, and the County does not dispute, that the Corporation is an “arm” of the Tribe for sovereign immunity purposes. See Brief for United States as Amicus Curiae 11-14.

       At oral argument, the County defended this refusal by asserting that federal law prohibited it from releasing the relevant pages of the employees’ welfare applications. See Tr. of Oral Arg. 4-5. But the United States assured the Court that “[t]here is no Federal regulation or other Federal requirement” that would have prevented the County from sharing the relevant information with the Tribe. Id., at 21. This entire controversy, it thus appears, might have been avoided had the county officials understood that federal law allowed the accommodation sought by the Tribe.

       The Tribe did not dispute the State’s authority over the crimes under investigation. See Brief for United States as Amicus Curiae 29.

       The relevant portion of 42 U. S. C. § 1983 reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       Courts of Appeals have expressed divergent views on this question. See Native Village of Venetie IRA Council v. Alaska, 155 F. 3d 1150, 1152, n. 1 (CA9 1998) (concluding that Tribes are persons entitled to sue under § 1983); American Vantage Co. v. Table Mountain Rancheria, 292 F. 3d 1091, 1097, n. 4 (CA9 2002) (“[I]t is doubtful whether [a] Tribe qua sovereign would qualify as a ‘citizen of the United States or other person’ eligible to bring an action under § 1983.” (quoting White Mountain Apache Tribe v. Williams, 810 F. 2d 844, 865, n. 16 (CA9 1987) (Fletcher, J., dissenting))); cf. Illinois v. Chicago, 137 F. 3d 474, 477 (CA7 1998) (stating in dictum that “a state is not a ‘person’ under [§1983]”); Pennsylvania v. Porter, 659 F. 2d 306, 314-318 (CA3 1981) (en banc) (holding that a State may bring a § 1983 action in a parens patriae capacity).

       It hardly “demean[s] . . . Native American tribes,” see post, at 713 (Stevens, J., concurring in judgment), in our view, to bracket them with States of the Union in this regard.

       The Dictionary Act, which was passed just two months before § 1983 and was designed to supply rules of construction for all legislation, provided that “the word ‘person’ may extend and be applied to bodies politic and corporate ....” Act of Feb. 25, 1871, §2, 16 Stat. 431.

       Our holding in Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989), that a State is not a “person” within § 1983 is fully consistent with this view. Will rested on “the ordinary rule of statutory construction that if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984).” Ibid.


author: Per Curiam.

text:
    CITY OF LOS ANGELES v. DAVID
    No. 02-1212.
    Decided May 19, 2003
   Per Curiam.

On August 13, 1998, an officer of the city of Los Angeles Department of Transportation ordered respondent Edwin David’s automobile towed from a spot where parking was forbidden. After paying $134.50, David recovered his car. David, believing that the trees obstructed his view of the “no parking” sign, requested a hearing to recover the money. On September 9, 1998 — 27 days after the vehicle was towed — the city held the hearing and denied David’s claim.

David then brought this lawsuit in Federal District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, arguing that the city, in failing to provide a sufficiently prompt hearing, had violated his federal right to “due process of law.” Arndt. 14, § 1. The District Court granted summary judgment for the city. The Court of Appeals for the Ninth Circuit, by a vote of 2 to 1, reversed, holding that the Constitution required the city to provide an earlier payment-recovery hearing, perhaps within 48 hours of the towing and at least within 5 days. 307 F. 3d 1143, 1147 (2002). The city, seeking certiorari here, argues that the Ninth Circuit’s holding rims contrary to well-settled principles of constitutional law. We agree. We grant the writ and summarily reverse the Ninth Circuit’s judgment.

In Mathews v. Eldridge, 424 U. S. 319, 335 (1976), the Court set forth three factors that normally determine whether an individual has received the “process” that the Constitution finds “due”:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

By weighing these concerns, courts can determine whether a State has met the “fundamental requirement of due process” — “the opportunity to be heard ‘at a meaningful time and in a meaningfiil manner.’” Id., at 333.

In FDIC v. Mallen, 486 U. S. 230, 242 (1988), the Court considered circumstances in which “impairment of an individual’s property is not preceded by any opportunity for a pre-deprivation hearing.” A Government agency had suspended an indicted bank employee from his job. A statute required the agency to provide a postdeprivation hearing within 30 days and to issue a decision within 60 days of that hearing. The bank employee claimed that the 30- or 90-day delay between (a) the suspension and (b) the postsuspension hearing and decision violated the Due Process Clause. The Court recognized that there “is a point at which an unjustified delay in completing a post-deprivation proceeding ‘would become a constitutional violation.’” Ibid. It applied Eldridge-type factors to determine whether that point had been reached. 486 U. S., at 242 (assessing the importance of, and harm to, the private interest, the likelihood of interim error, and the governmental interest in a delay). And it concluded that a 30-day delay of the hearing, and a potential 90-day delay of a decision, did not violate the Constitution. Id., at 243.

Eldridge, as applied in Mallen, requires reversal of the Ninth Circuit’s decision. The first Eldridge factor, the “private interest,” is a monetary interest here. It consists of the private individual’s interest in maintaining the use of money between (a) the time of paying the impoundment and towing fees and (b) the time of the hearing. The temporary deprivation of a job, the “private interest” at issue in Mallen, typically works a far more serious harm. Cf. Eldridge, supra, at 340 (distinguishing in this respect between benefits “not based upon financial need” and welfare assistance “given to persons on the very margin of subsistence”). So does a temporary deprivation of the use of the automobile itself — the relevant deprivation at issue in the lower court cases to which the Ninth Circuit looked for support. See Stypmann v. San Francisco, 557 F. 2d 1388, 1342-1344 (CA9 1977). Cf. Goichman v. Rheuban Motors, Inc., 682 F. 2d 1320, 1324 (CA9 1982). Indeed, the city indicates that any loss in the time value of the money can be compensated by an interest payment. Pet. for Cert. 7.

The second Eldridge factor — concern for accuracy — does not support the Ninth Circuit’s conclusion. A 30-day delay in presenting evidence is unlikely to spawn significant factual errors. Administrative and judicial proceedings normally take place after considerably more time has elapsed. And the straightforward nature of the issue — whether the car was illegally parked — indicates that initial towing errors, while they may occur, are unlikely. Cf. Mallen, supra, at 244-245 (finding “little likelihood that the deprivation is without basis” in light of the grand jury indictment).

The third Eldridge factor — the “Government’s interest”— argues strongly in the city’s favor. The nature of the city’s interest in delay is one of administrative necessity. The city points out that it “conducts more than a thousand vehicle impound hearings annually.” Pet. for Cert. 8. It holds about five percent of these hearings — those involving individuals who are unable to afford the impoundment fees— within 48 hours. Ibid. It “takes time to organize hearings: there are only so many courtrooms and presiding officials; the city has to contact the towing officer and arrange for his appearance; the city may have to find a substitute to cover that officer’s responsibilities while he attends the hearing.” 307 F. 3d, at 1149 (Kozinski, J., dissenting). And the Ninth Circuit’s holding, which presumably would require the city to schedule annually 1,000 or more hearings, instead of 50 hearings, within a 48-hour (or 5-day) time limit, will prove burdensome. The administrative resources available to modern police departments are not limitless. The administrative necessity supporting the delay here is no less substantial than the governmental interest in the 30-day hearing delay in Mallen, namely, the need to protect the integrity of the banking system and to prepare thoroughly for the hearing. Mallen, supra, at 244. We also add that the reason for denying a predeprivation hearing here — such a hearing is impossible if the city is to be able to enforce the parking rules — is not any less important than in Mallen.

We conclude that the 27-day delay in holding a hearing here reflects no more than a routine delay substantially required by administrative needs. Our eases make clear that the Due Process Clause does not prohibit an agency from imposing this kind of procedural delay when holding hearings to consider claims of the kind here at issue. The Ninth Circuit’s judgment to the contrary is reversed.

It is so ordered.


text:
    KANSAS v. NEBRASKA
    No. 126,
    Orig.
    Decree entered May 19, 2003
   The Final Report of the Special Master is received and ordered filed.

DECREE

This cause, having come to be heard on the Second Report of the Special Master appointed by this Court, and on the Parties’ Joint Motion for Approval of Final Settlement Stipulation, which accompanies said Report, IT IS HEREBY ORDERED THAT:

1. The Final Settlement Stipulation executed by all of the parties to this case and filed with the Special Master on December 16, 2002, is approved;

2. This action is recommitted to the Special Master for the sole purpose of deciding procedural questions arising in the completion by the state parties of the RRCA Groundwater Model pursuant to the binding procedures prescribed by the Final Settlement Stipulation. All claims, counterclaims, and cross-claims for which leave to file was or could have been sought in this case arising prior to December 15, 2002, are hereby dismissed with prejudice effective upon the filing by the Special Master of a final report certifying adoption of the RRCA Groundwater Model by the state parties.