source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice White, Mr. Justice Blackmun, Mb. Justice Rehnquist,

license: Public Domain

text:
    WHALEN v. UNITED STATES
    No. 78-5471.
    Argued November 27, 28, 1979
    Decided April 16, 1980

      Stewart, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. White, J., filed an opinion concurring in part and concurring in the judgment, post, p. 695. BlacKmun, J., filed an opinion concurring in the judgment, post, p. 696. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 699.

      Silas J. Wasserstrom argued the cause for petitioner. With him on the briefs were William J. Mertens and W. Gary Kohlman.

      Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Allan A. Ryan, Jr., Jerome M. Feit, and Elliott Schulder.

   Mr. Justice Stewart

delivered the opinion of the Court.

After a jury trial, the petitioner was convicted in the Superior Court of the District of Columbia of rape, and of killing the same victim in the perpetration of rape. He was sentenced to consecutive terms of imprisonment of 20 years to life for first-degree murder, and of 15 years to fife for rape. The District of Columbia Court of Appeals affirmed the convictions and the sentences. 379 A. 2d 1152. We brought the case here to consider the contention that the imposition of cumulative punishments for the two offenses was contrary to federal statutory and constitutional law. 441 U. S. 904.

I

Under the laws enacted by Congress for the governance of the District of Columbia, rape and killing a human being in the course of any of six specified felonies, including rape, are separate statutory offenses. The latter is a species of first-degree murder, but, as is typical of such “felony murder” offenses, the statute does not require proof of an intent to kill. D. C. Code § 22-2401 (1973). It does require proof of a killing and of the commission or attempted commission of rape or of one of five other specified felonies, in the course of which the killing occurred. Ibid. A conviction of first-degree murder is punishable in the District of Columbia by imprisonment for a term of 20 years to life. § 22-2404. Forcible rape of a female is punishable by imprisonment for any term of years or for life. § 22-2801.

It is the petitioner’s position that his sentence for the offense of rape must be vacated because that offense merged for purposes of punishment with the felony-murder offense, just as, for example, simple assault is ordinarily held to merge into the offense of assault with a dangerous weapon. See Waller v. United States, 389 A. 2d 801, 808 (D. C. 1978). The District of Columbia Court of Appeals disagreed, finding that “the societal interests which Congress sought to protect by enactment [of the two statutes] are separate and distinct,” and that “nothing in th[e] legislation . . . suggests] that Congress intended” the two offenses to merge. 379 A. 2d, at 1159. That construction of the legislation, the petitioner argues, is mistaken, and he further argues that, so construed, the pertinent statutes impose on him multiple punishments for the same offense in violation of the Double Jeopardy-Clause of the Fifth Amendment. Cf. North Carolina v. Pearce, 395 U.S. 711.

If this case had come here from a United States court of appeals, we would as a matter of course first decide the petitioner’s statutory claim, and, only if that claim were rejected, would we reach the constitutional issue. See Simpson v. United States, 435 U. S. 6, 11-12. But this case comes from the District of Columbia Court of Appeals, and the statutes in controversy are Acts of Congress applicable only within the District of Columbia. In such cases it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. See Pernell v. Southall Realty, 416 U. S. 363, 366; see also Griffin v. United States, 336 U. S. 704, 717-718; Fisher v. United States, 328 U. S. 463, 476. This practice has stemmed from the fact that Congress, in creating the courts of the District of Columbia and prescribing their jurisdiction, “contemplate [d] that the decisions of the District of Columbia Court of Appeals on matters of local law — both common law and statutory law — will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law.” Pernell v. Southall Realty, 416 U. S., at 368 (footnote omitted).

But it is clear that the approach described in the Pernell opinion is a matter of judicial policy, not a matter of judicial power. Acts of Congress affecting only the District, like other federal laws, certainly come within this Court’s Art. Ill jurisdiction, and thus we are not prevented from reviewing the decisions of the District of Columbia Court of Appeals interpreting those Acts in the same jurisdictional sense that we are barred from reviewing a state court’s interpretation of a state statute. Ibid. Cf. Mullaney v. Wilbur, 421 U. S. 684, 691; Scripto, Inc. v. Carson, 362 U. S. 207, 210; Murdock v. Memphis, 20 Wall. 590, 632-633.

In this case we have concluded that the customary deference to the District of Columbia Court of Appeals’ construction of local federal legislation is inappropriate with respect to the statutes involved, for the reason that the petitioner’s claim under the Double Jeopardy Clause cannot be separated entirely from a resolution of the question of statutory construction. The Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also “against multiple punishments for the same offense,” North Carolina v. Pearce, supra, at 717 (footnote omitted). But the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized. See Gore v. United States, 357 U. S. 386, 390; id., at 394 (Warren, C. J., dissenting on statutory grounds); Bell v. United States, 349 U. S. 81, 82; Ex parte Lange, 18 Wall. 163, 176; see also Brown v. Ohio, 432 U. S. 161, 165; United States v. Universal C. I. T. Credit Corp., 344 U. S. 218; Blockburger v. United States, 284 U. S. 299; Ebeling v. Morgan, 237 U. S. 625.

It is not at all uncommon, for example, for Congress or a state legislature to provide that a single criminal offense may be punished both by a monetary fine and by a term of imprisonment. In that situation, it could not be seriously argued that the imposition of both a fine and a prison sentence in accordance with such a provision constituted an impermissible punishment. But if a penal statute instead provided for a fine or a term of imprisonment upon conviction, a court could not impose both punishments without running afoul of the double jeopardy guarantee of the Constitution. See Ex parte Lange, supra, at 176. Cf. Bozza v. United States, 330 U. S. 160, 167. In the present case, therefore, if Congress has not authorized cumulative punishments for rape and for an unintentional killing committed in the course of the rape, contrary to what the Court of Appeals believed, the petitioner has been imper-missibly sentenced. The dispositive question, therefore, is whether Congress did so provide.

The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress. See United States v. Wiltberger, 5 Wheat. 76, 95; United States v. Hudson & Goodwin, 7 Cranch 32, 34. If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty.

Because we have concluded that the District of Columbia Court of Appeals was mistaken in believing that Congress authorized consecutive sentences in the circumstances of this case,, and because that error denied the petitioner his constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress, we reverse the judgment of the Court of Appeals.

II

As has already been noted, rape and the killing of a person in the course of rape in the District of Columbia are separate statutory offenses for which punishments are separately provided. Neither statute, however, indicates whether Congress authorized consecutive sentences where both statutes have been offended in a single criminal episode. Moreover, the legislative history of those specific penal provisions sheds no light on that question. The issue is resolved, however, by another statute, enacted iii 1970. That statute is § 23-112 of the District of Columbia Code (1973), and it provides as follows:

“A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run' consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.” (Emphasis added.)

Although the phrasing of the statute is less than felicitous, the message of the italicized clause, we think, is that multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense “requires proof of a fact which the other does not.” The clause refers, of course, to a rüle of statutory construction stated by this Court in Blockburger v. United States, 284 U. S. 299, and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively. The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. In the Blockburger case the .Court held that “[t]he applicable rule is .that where the same act or transaction constitutes a violation of two distinct statutory provisions,, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., at 304. See also Brown v. Ohio, 432 U. S., at 166; Iannelli v. United States, 420 U. S. 770; Gore v. United States, 357 U. S. 386.

The legislative history rather clearly confirms that Congress intended the federal courts to adhere strictly to the Block-burger test when construing the penal provisions of the District of Columbia Code. The House Committee Report expressly disapproved several decisions of the United States Court of Appeals for the District of Columbia Circuit that had not allowed consecutive sentences notwithstanding the fact that the offenses were different under the Blockburger test. See H. R. Rep. No. 91-907, p. 114 (1970). The Report restated the general principle that “whether or not consecutive sentences may be imposed depends on the intent of Congress.” Ibid. But “[s]ince Congress in enacting legislation rarely specifies its intent on this matter, the courts have long adhered to the rule that Congress did intend to permit consecutive sentences . . . when each offense “ 'requires proof of a fact which the other does not,'” ibid., citing Blockburger v. United States, supra, and Gore v. United States, supra. The Committee Report observed that the United States Court of Appeals had “retreated from this settled principle of law” by requiring specific evidence of congressional intent to allow cumulative punishments, H. R. Rep. No. 91-907, at 114, and the Report concluded as follows:

“To obviate the need for the courts to search for legislative intent, section 23-112 clearly states the rule for sentencing on offenses arising from the same transaction. For example, a person Convicted of entering a house with intent to steal and stealing therefrom shall be sentenced consecutively on the crimes of burglary and larceny unless the judge provides to the contrary.”

We think that the only correct way to read § 23-112, in the light of its history and its evident purpose, is to read it as embodying the Blockburger rule for construing the penal provisions of the District of Columbia Code. Accordingly, where two statutory offenses are not the same under the Blockburger test, the sentences imposed “shall, unless the court expressly provides otherwise, run consecutively.” And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.

In this case, resort to the Blockburger rule leads to the conclusion that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that “each provision requires proof of a fact which the other does not.” A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape. See United States v. Greene, 160 U. S. App. D. C. 21, 34, 489 F. 2d 1145, 1158 (1973). Cf. Harris v. Oklahoma, 433 U. S. 682, 682-683. The Government contends that felony murder and rápe are not the “same” offense under Blockburger, since the former offense does not in all cases require proof of a rape; that is, D. C. Code § 22-2401 (1973) proscribes the killing of another person in the course of committing rape or robbery or kidnap-ing or arson, etc. Where the offense to be proved does not include proof of a rape — for example, where the offense is a killing in the perpetration of a robbery — the offense is of course different from the offense of rape, and the Government is correct in believing that cumulative punishments for the felony murder and for a rape would be permitted under Blockburger. In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense. There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions. It is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it. To the extent that the Government’s argument persuades us that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity. See Simpson v. United States, 435 U. S. 6, 14-15; see also n. 10, infra.

Congress is clearly free to fashion exceptions to the rule it chose to enact in § 23-112. A court, just as clearly, is not. Accordingly, notwithstanding the arguments advanced by the Government in favor of imposing consecutive sentences for felony murder and for the underlying felony, we do not speculate about whether Congress, had it considered the matter, might have agreed. It is sufficient for present purposes to observe that a congressional intention to change the general rule of § 23-112 for the circumstances here presented nowhere clearly appears. It would seriously offend the principle of the separation of governmental powers embodied in the Double Jeopardy Clause of the Fifth Amendment if this Court were to fashion a contrary rule with no more to go on than this case provides.

For the foregoing reasons, the judgment of. the District of Columbia. Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice White,

concurring in part and concurring in the judgment.

Because the District of Columbia Court of Appeals did not take account of § 23-112 of the District of Columbia Code, this is one of those exceptional cases in which the judgment of that court is not entitled to the usual deference. Pernell v. Southall Realty, 416 U. S. 363, 369 (1974). This conclusion, in my opinion, need not rest on any constitutional considerations.

I agree for the reasons given by the Court that in light of § 23-112 and its legislative history, the court below erred in holding that Congress intended to authorize cumulative punishments in this case. But as I see it, the question is one of statutory construction and does not implicate the Double Jeopardy Clause. Had Congress authorized cumulative punishments, as the District of Columbia Court of Appeals held in this case, imposition of such sentences would not violate the Constitution. I agree with Mr. Justice Blackmun and Mr. Justice Rehnquist in this respect.

Mr. Justice Blackmun,

concurring in the judgment.

I join the judgment of the Court and much of its opinion. I write separately primarily to state my understanding of the effect, or what should be the effect, of the Court’s holding on general double jeopardy principles.

(1) I agree with the Court that it would be inappropriate in this case to accord complete deference to the District of Columbia Court of Appeals’ construction of the local legislation at issue. In addition to the reasons offered in the Court’s opinion, ante, at 688-689, I would point out that the conclusions of the Court of Appeals concerning the intent of Congress in enacting the felony-murder statute were unsupported by appropriate references to the legislative history. Moreover, that court ignored the effect of § 23-112 of the District of Columbia Code, which I have concluded is disposi-tive of this case. I view the case, therefore, as one falling within the class of “ 'exceptional situations where egregious error has been committed.’ ” Pernell v. Southall Realty, 416 U. S. 363, 369 (1974), quoting from Griffin v. United States, 336 U. S. 704, 718 (1949), and Fisher v. United States, 328 U. S. 463, 476 (1946). Where such an error has been committed, this Court is barred neither by Art. Ill nor past practice from overruling the courts of the District of Columbia on a question of local law. Pernell, 416 U. S., at 365-369.

(2) I agree with the Court that “the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Ante, at 688. I read the opinions cited by the Court in support of that proposition, however, as pronouncing a broader and more significant principle of double jeopardy law. The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended. It serves, in my considered view, nothing more. “Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U. S. 161, 165 (1977).

Dicta in recent opinions of this Court at least have suggested, and I now think wrongly, that the Double Jeopardy Clause may prevent the imposition of cumulative punishments in situations in which the Legislative Branch clearly intended that multiple penalties be imposed for a single criminal transaction. See Simpson v. United States, 435 U. S. 6, 11-13 (1978); Jeffers v. United States, 432 U. S. 137, 155 (1977) (plurality opinion). I believe that the Court should take the opportunity presented by this case to repudiate those dicta squarely, and to hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. I must concede that the dicta that seemingly support a contrary view have caused confusion among state courts that have attempted to decipher our pronouncements concerning the Double Jeopardy Clause’s role in the area of multiple punishments.

(3) Finally, I agree with the Court that § 23-112 expresses Congress’ intent not to authorize the imposition of consecutive sentences in cases in which the two offenses involved do not each require proof of a fact that the other does not. Ante, at 690-693. The question then remains whether the crimes of rape and felony murder based upon that rape each require proof of a fact that the other does not. I would agree that they do not, and for the reasons stated by the Court, ante, at 693-694. I hasten to observe, however, that this result turns on a determination of Congress’ intent. The Court’s holding today surely does not require that the same result automatically be reached in a State where the legislature enacts criminal sanctions clearly authorizing cumulative sentences for a defendant convicted on charges of felony murder and the underlying predicate felony. Nor does this Court’s per curiam opinion in Harris v. Oklahoma, 433 U. S. 682 (1977), holding that successive prosecutions for felony murder and the underlying predicate felony are constitutionally impermissible, require the States to reach an analogous result in a multiple punishments case. Unfortunately, the rather obvious holding in Harris and the dictum in Simpson have combined to spawn disorder among state appellate courts reviewing challenges similar to the one presented here. I would hope that today’s holding will remedy, rather than exacerbate, the existing confusion.

Mb. Justice Rehnquist,

with whom The Chief Justice joins, dissenting.

Historians have traced the origins of our constitutional guarantee against double jeopardy, back to the days of Demosthenes, who stated that “the laws forbid the same man to be tried twice on the same issue. . . .” 1 Demosthenes 589 (J. Vince trans., 4th ed. 1970). Despite its roots in antiquity, however, this guarantee seems both one of the least understood and, in recent years, one . of the most frequently litigated provisions of the Bill of Rights. This Court has done. little to alleviate the confusion, and our opinions, including ones authored by me, are replete with mea cwlpo’s. occasioned by shifts in assumptions and emphasis. Compare, e. g., United States v. Jenkins, 420 U. S. 358 (1975), with United States v. Scott, 437 U. S. 82 (1978) (overruling Jenkins). See also Burks v. United States, 437 U. S. 1, 9 (1978) (Our holdings on this subject “can hardly be characterized as models of consistency and clarity”). Although today’s decision takes a tentative step toward recognizing what I believe to be the proper role for this Court in determining the permissibility of multiple punishments, it ultimately compounds the confusion that has plagued us in the double jeopardy area.

I

In recent years we have stated in the manner of “black letter law” that the Double Jeopardy Clause serves three primary purposes. First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969); Brown v. Ohio, 432 U. S. 161, 165 (1977). See also ante, at 688 (opinion of the Court). Obviously, the scope of each of these three protections turns upon the meaning of the words “same offense,” a phrase deceptively simple in appearance but virtually kaleidoscopic in application. Indeed, we have indicated on at least one prior occasion that the meaning of this phrase may vary from context to context, so that two charges considered the same offense so as to preclude prosecution on one charge after an acquittal or conviction on the other need not be considered the same offense so as to bar separate punishments for each charge at a single proceeding. See Brown v. Ohio, supra, at 166-167, n. 6.

In the present case we are asked to decide whether the Double Jeopardy Clause bars the imposition of separate punishments for the crimes of rape and felony murder based on rape. Because the sentences challenged by petitioner were imposed at a single criminal proceeding, this case obviously is not controlled by precedents developed in the context of successive prosecutions. Thus, the Court rightly eschews reliance upon Harris v. Oklahoma, 433 U. S. 682 (1977), where we concluded that the crimes of robbery and felony murder predicated on that robbery were similar enough to prevent the State of Oklahoma from prosecuting a person for the former offense after convicting him of the latter offense. See ante, at 694 (opinion of the Court). See also ante, at 698-699 (Blackmun, J.,' concurring in judgment).

Having determined that this case turns on the permissibility of “multiple punishments” imposed at a single criminal proceeding, the Court takes a tentative step in what I believe to be the right direction by indicating that the “dis-positive question” here is whether Congress intended to authorize separate punishments for the two crimes. Ante, at 689 (opinion of the Court). As Mr. Justice Blackmun notes in his concurrence, this Court has not always been so forthright in recognizing that Congress could, if it so desired, authorize cumulative punishments for violation of two separate statutes, whether or not those statutes defined “separate offenses” in some abstract sense. See ante, at 698. While we have hinted at this proposition in prior opinions, see, e. g., Brown v. Ohio, supra, at 165; Gore v. United States, 357 U. S. 386, 394 (1958) (Warren, C. J., dissenting), we have just as often hedged our bets with veiled hints that a legislature might offend the Double Jeopardy Clause by authorizing too many separate punishments for any single “act.” See, e. g., Simpson v. United States, 435 U. S. 6, 11-12 (1978); Sanabria v. United States, 437 U. S. 54, 69 (1978); Jeffers v. United States, 432 U. S. 137, 155 (1977) (plurality opinion). To the extent that this latter thesis assumes that any particular criminal transaction is made up of a determinable number of constitutional atoms that the legislature cannot further subdivide into separate offenses, “it demands more of the Double Jeopardy Clause than it is capable of supplying.” Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81, 113. See also Note, Twice in Jeopardy, 75 Yale L. J. 262, 311-313 (1965).

Having come thus far with the Court and the concurrence, I here part company, for it seems clear to me that, if the only question confronting this Court is whether Congress intended to authorize cumulative punishments for rape and for felony murder based upon rape, this Court need decide no constitutional question whatsoever. Axiomatically, we are obligated to avoid constitutional rulings where a statutory ruling would suffice. See Hagans v. Lavine, 415 U. S. 528, 549 (1974); Ashwander v. TV A, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Thus, to the extent that the trial court exceeded its legislative authorization in sentencing petitioner to consecutive sentences for rape and felony murder where Congress intended the offenses to merge, our holding should rest solely on our interpretation of the relevant statutes rather than on vague references to “the principle of the separation of governmental powers embodied in the Double Jeopardy Clause of the Fifth Amendment. . . Ante, at 695 (opinion of the Court).

Like many of the false trails we have followed in this area, the Court’s confusion of statutory and constitutional inquiries is not without precedent. Brown v. Ohio contains dictum to the effect that, “[w]here consecutive sentences are imposed at a single criminal trial,” the Double Jeopardy Clause prevents the sentencing court from “exceed[ing] its legislative authorization by imposing multiple punishments for the same offense.” 432 U. S., at 165. In support of this dictum, which I believe ill-considered, Brown cited three cases: Ex parte Lange, 18 Wall. 163 (1874); Bell v. United States, 349 U. S. 81 (1955); and Gore v. United States, supra. In doing so, it tied together three separate strands of cases in what may prove to be a true Gordian knot.

In Ex parte Lange petitioner had been convicted under a statute authorizing a punishment of either fine or imprisonment. The District Court nevertheless sentenced him to a fine and imprisonment. Petitioner had paid his fine and had begun to serve his sentence when the District Court, apparently recognizing its mistake, held a new sentencing proceeding and resentenced him to imprisonment only. Noting that petitioner had fully satisfied the relevant statute by paying the fine, this Court held that he was entitled to protection from a second punishment “in the same court, on the same facts, for the same statutory offence.” 18 Wall., at 168. As is borne out by subsequent cases, the Double Jeopardy Clause as interpreted in Ex parte Lange prevents a sentencing court from increasing a defendant’s sentence for any particular statutory offense, even though the second sentence is within the limits set by the legislature. See North Carolina v. Pearce, 395 U. S. 711 (1969); United States v. Benz, 282 U. S. 304, 307 (1931). See also United States v. Sacco, 367 F. 2d 368 (CA2 1966); United States v. Adams, 362 F. 2d 210 (CA6 1966); Kennedy v. United States, 330 F. 2d 26 (CA9 1964).

In Bell v. United States, supra, this Court considered a question wholly different from that considered in Ex parte Lange and its progeny: the proper units into which a statutory offense was to be divided. The petitioner in Bell had been convicted of two counts of violating the Mann Act, 18 U. S. C. § 2421 et seq., for carrying two women across state lines for an immoral purpose. Both counts dealt with the same trip in the same car. The question presented to the Court was whether simultaneous transportation of more than one woman in violation of the Mann Act constituted multiple violations of that Act subjecting the offender to multiple punishments. The Court noted that Congress could, if it so desired, hinge the severity of the punishment on the number of women involved. Finding no evidence of such an intent, the Court applied the traditional “rule of lenity” and held that petitioner could only be punished for a single count.

Most significantly for our purposes, Bell was based entirely upon this Court’s interpretation of the statute and the relevant legislative intent; it did not mention the Double Jeopardy Clause at all. In finding congressional intent on the appropriate unit of prosecution dispositive, the Court acted consistently with a long line of cases based in English common law. In Crepps v. Durden, 2 Cowp. 640, 98 Eng. Hep. 1283 (K. B. 1777), Lord Mansfield, writing for a unanimous court, held that the sale of four loaves of bread on Sunday in violation of a statute forbidding such sale constituted one offense, not four. According to Lord Mansfield: “If the Act of Parliament gives authority to levy but one penalty, there is an end of the question. . . Id., at 646, 98 Eng. Rep., at 1287. One hundred years later, this Court expressly adopted the reasoning of Crepps that the proper unit of prosecution was completely dependent upon the legislature’s intent. See In re Snow, 120 U. S. 274, 283-286 (1887). We have consistently abided by this rule since that time, noting on at least one occasion that “[t]here is no constitutional issue presented” in such cases. See Ladner v. United States. 358 U. S. 169, 173 (1958). See also United States v. Universal C. I. T. Credit Corp., 344 U. S. 218 (1952); Ebeling v. Morgan, 237 U. S. 625 (1915). Cf. Sanabria v. United States, 437 U. S., at 69-70 (successive prosecutions).

Gore v. United States, the third case cited in Brown, presented an issue analogous to, but slightly different from, that presented in Bell and the other unit-of-proseeution cases, namely, the permissibility of consecutive sentences when a defendant committed a single act that violated two or more criminal provisions. This issue, the precise one confronting us today, has been litigated in an astonishing number of statutory contexts with little apparent analytical consistency. See, e. g., Simpson v. United States, 435 U. S. 6 (1978); Harris v. United States, 359 U. S. 19 (1959); Heflin v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U. S. 322 (1957); Pereira v. United States, 347 U. S. 1 (1954); American Tobacco Co. v. United States, 328 U. S. 781 (1946) ; Holiday v. Johnston, 313 U. S. 342 (1941); Blockburger v. United States, 284 U. S. 299 (1932); Morgan v. Devine, 237 U. S. 632 (1915); Burton v. United States, 202 U. S. 344 (1906); Carter v. MeClaughry, 183 U. S. 365 (1902). In some of these cases the Court seems to have recognized that it was attempting to divine legislative intent. See, e. g., Prince v. United States, supra, at 328; Morgan v. Devine, supra, at 638-639; Burton v. United States, supra, at 377. In other cases, the Court seemed to apply a “same evidence” test borrowed from cases involving successive prosecutions. See, e. g., Pereira v. United States, supra, at 9; Carter v. McClaughry, supra, at 394-395. In still others it is difficult to determine the precise basis for the Court’s decision. See, e. g., Harris v. United States, supra. As in the unit-of-prosecution cases, this Court has specified on at least one occasion that the erroneous imposition of cumulative sentences in a single case raises no constitutional issue at all. See Holiday v. Johnston, supra, at 349.

Unlike the Court, I believe that the Double Jeopardy Clause should play no role whatsoever in deciding whether cumulative punishments may be imposed under different statutes at a single criminal proceeding. I would analogize the present case to our unit-of-prosecution decisions and ask only whether Congress intended to allow a court to impose consecutive sentences on a person in petitioner’s position. To paraphrase Lord Mansfield’s statement in Crepps v. Durden, supra, that should be the end of the question. As even the Court’s analysis of the merits here makes clear, see ante, at 690-694, traditional statutory interpretation as informed by the rule of lenity completely supplants any possible additional protection afforded petitioner by the Double Jeopardy Clause.

The difference in this context between a constitutional decision and a statutory decision is not merely one of judicial semantics. Both the Court and the concurrence appear to invoke the Double Jeopardy Clause to justify their refusal to defer to the District of Columbia Court of Appeals’ interpretation of these locally applicable statutes. See ante, at 688 (opinion of the Court); ante, at 696 (Blackmun, J., concurring in judgment). The mischief in this approach, I believe, is well illustrated in a footnote — fairly described as either cryptic or tautological — stating that “[t]he Due Process Clause of the Fourteenth Amendment . . . would presumably prohibit state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law.” Ante, at 690, n. 4 (opinion of the Court). The effect of this and similar statements in the opinion of the Court, I fear, will be to raise doubts about questions of state law that heretofore had been thought to be exclusively the province of the highest courts of the individual States. To the extent that the Court implies that a state court can ever err in the interpretation of its own law and that such an error would create a federal question reviewable by this Court, I believe it clearly wrong. For the question in such cases is not whether the lower court “misread” the relevant statutes or its own common law, but rather who does the reading in the first place.

II

Because the question before us is purely one of statutory interpretation, I believe that we should adhere to our “longstanding practice of not overruling the courts of the District on local law matters ‘save in exceptional situations where egregious error has been committed.’ ” Pernell v. Southall Realty, 416 U. S. 363, 369 (1974), quoting from Griffin v. United States, 336 U. S. 704, 718 (1949). In the present case I would suggest that the lower court, far from committing “egregious error,” engaged in analysis much more sophisticated than that employed by the Court herein and reached a conclusion that is not only defensible, but quite probably correct.

The Court’s attempt to determine whether Congress intended multiple punishment in a case like petitioner’s is really quite cramped. - It looks first to the legislative history surrounding the adoption of the relevant provisions and finds that history inconclusive. See ante, at 690, and n. 5. It then attempts to mechanisticaEy apply the rule of statutory construction employed by this Court in Blockburger v. United States, 284 U. S. 299 (1932). See ante, at 691-694. Under that test, two statutory provisions are deemed to constitute the “same offense” so as to preclude imposition of multiple punishments unless “each provision requires proof of a fact which the other does not.” 284 U. S., at 304. In Blockburger, for example, this Court determined that a provision forbidding the sale of certain drugs except in or from the original stamped package and a provision forbidding the selling of the same drugs “not in pursuance of a written order of the” purchaser defined separate offenses because “each of the offenses created requires proof of a different element.” Ibid. Thus, separate penalties could be imposed under each statute, even though both offenses were based on the same sale.

Two observations about the Blockburger test are especially relevant in this case. First, the test is a rule of statutory construction, not a constitutional talisman. See Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975). Having already posited that the Double Jeopardy Clause imposes no restraint upon a legislature’s ability to provide for multiple punishments, I believe it clear that a legislature could, if it so desired, provide for separate punishments under two statutory provisions, even though those provisions define the “same offense” within the meaning of Blockburger. To take a simple example, a legislature might set the penalty for assault at two years’ imprisonment while setting the penalty for assault with a deadly weapon as “two years for assault and an additional two years for assault with a deadly weapon.” Even though the former crime is obviously a lesser included offense of the latter crime — or, in the rubric of Blockburger, the first offense does not require proof of any fact that the second does not — neither Blockburger nor the Double Jeopardy Clause would preclude the imposition of the “cumulative” sentence of two years.

Second, the Blockburger test, although useful in identifying statutes that define greater and lesser included offenses in the traditional sense, is less satisfactory, and perhaps even misdirected, when applied to statutes defining “compound” and “predicate” offenses. Strictly speaking, two crimes do not stand in the relationship of greater and lesser included offenses unless proof of the greater necessarily entails proof of the lesser. See Brown v. Ohio, 432 U. S., at 167-168. See also Black’s Law Dictionary 1048 (rev. 4th ed. 1968). In the case of assault and assault with a deadly weapon, proof of the latter offense will always entail proof of the former offense, and this relationship holds true regardless whether one examines the offenses in the abstract or in the context of a particular criminal transaction.

On the other hand, two statutes stand in the relationship of compound and predicate offenses when one statute incorporates several other offenses by reference and compounds those offenses if a certain additional element is present. To cite one example, 18 U. S. C. § 924 (c)(1) states that “[w]hoever . . . uses a firearm to commit any felony for which he may be prosecuted in a court of the United States . . . shall ... be sentenced to a term of imprisonment for not less than one year nor more than ten years.” • Clearly, any one of a plethora of felonies could serve as the predicate for a violation of § 924 (c)(1).

This multiplicity of predicates creates problems When one attempts to apply Blockburger. If one applies the test in the abstract by looking solely to the wording of § 924 (c)(1) and the statutes defining the various predicate felonies, Block-burger would always permit imposition of cumulative sentences, since no particular felony is ever “necessarily included” within a violation of § 924 (c)(1). If, on the other hand, one looks to the facts alleged in a particular indictment brought under § 924 (c)(1), then Blockburger would bar cumulative punishments for violating § 924 (c)(1) and the particular predicate offense charged in the indictment, since proof of the former would necessarily entail proof of the latter.

Fortunately, in the case of § 924 (c)(1) Congress made its intention explicit, stating unequivocally that the punishment for violation of that statute should be imposed “in addition to the punishment provided for the commission of [the predicate] felony. . . .” 18 U. S. C. § 924 (c). But in the present case, where the statutes at issue also stand in the relationship of compound and predicate offenses, Congress has not stated its intentions so explicitly. The felony-murder statute under consideration here provides:

“Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, . . . rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” D. C. Code § 22-2401 (1973).

The rape statute under consideration reads, in relevant part:

“Whoever has carnal knowledge of a female forcibly and against her will . . . shall be imprisoned for any term of years or for life.” D. C. Code § 22-2801 (1973).

If one tests the above-quoted statutes in the abstract, one can see that rape is not a lesser included offense of felony murder, because proof of the latter will not necessarily require proof of the former. One can commit felony murder without rape and one can rape without committing felony murder. If one chooses to apply Blockburger to the indictment in the present case, however, rape is a “lesser included offense” of felony murder because,- in this particular case, the prosecution could not prove felony murder without proving the predicate rape.

Because this Court has. never been forced to apply Blockburger in the context of compound and predicate offenses, we have not had to decide whether Blockburger should be applied abstractly to the statutes in question or specifically to the indictment as framed in a particular case. Our past decisions seem to have assumed, however, that Blockburger’s analysis stands or falls on the wording of the statutes alone. Thus, in Blockburger itself the Court stated that “the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine, whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U. S., at 304 (emphasis added). More recently, we framed the test as whether “ 'each statute requires proof of an additional fact which the other does not. . . Brown v. Ohio, supra, at 166, quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (emphasis added). See also Iannelli v. United States, 420 U. S., at 785, n. 17 (“[T]he Court’s application of the [Blockburger] test focuses on the statutory elements of the offense”); M. Fried-land, Double Jeopardy 212-213 (1969) (noting the two possible interpretations and pointing out that “the word ‘provision’ is specifically used in the test” as stated in Blockburger). Moreover, because the Blockburger test is simply an attempt to determine legislative intent, it seems more natural to apply it to the language as drafted by the legislature than to the wording of a particular indictment.

The Court notes this ambiguity but chooses instead to apply the test to the indictment in the present case. See ante, at 693-694. In doing so, it offers only two reasons for rejecting what would seem to be the more plausible interpretation of Blockburger. First, the Court notes that Congress could have broken felony murder down in six separate statutory provisions, one for each of the predicate offenses specified in § 22-2401, thereby insuring that, under Block-burger, rape would be a lesser included offense of murder in the course of rape. According to the Court, “[i]t is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it.” Ante, at 694. The short answer to this argument is that Congress did not break felony murder down into six separate statutory provisions. Thus, it hardly avails the Court to apply Blockburger to a statute that Congress did not enact. More significantly, however, I believe that the Court’s example illustrates one of my central points: when applied to-compound and predicate offenses, the Blockburger test has nothing whatsoever to do with legislative intent, turning instead on arbitrary assumptions and syntactical subtleties. Cf. n. 6, supra. If the polestar in this case is to be legislative intent, I see no reason to apply Blockburger unless it advances that inquiry.

Second, the Court asserts that “to the extent that . . . the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity.” Ante, at 694. This assertion, I would suggest, forms the real foundation of the Court’s decision. Finding no indication in the legislative history whether Congress intended cumulative punishment, and applying Blockburger with insolubly ambiguous results, the Court simply resolves its doubts in favor of petitioner and concludes that the rape committed by petitioner must merge into his conviction for felony murder. In doing so, the Court neglects the one source that should have been the starting point for its entire analysis: the lower court’s construction of the relevant statutes.

Unlike this Court, the District of Columbia Court of Appeals looked beyond the ambiguous legislative history and the inconclusive Blockburger test to examine the common-law roots of the crime of felony murder and to consider the societal interests protected by the relevant statutes. As for the first source, the lower court concluded from the history of felony murder at common law that “while the underlying felony is an element of felony murder it serves a more important function as an intent-divining mechanism” and that merger of the two offenses was therefore “inappropriate.” 379 A. 2d 1152, 1160 (1977). In so reasoning, the lower court acted in conformity with this Court’s long tradition of reading criminal statutes enacted by Congress “in the light of the common law. . . .” United States v. Carll, 105 U. S. 611, 612 (1882). See also Morissette v. United States, 342 U. S. 246, 262-263 (1952).

In addition to looking to the common law for assistance in determining Congress’ intent, the lower court examined “the societal interests protected by the statutes under consideration.” 379 A. 2d, at 1158-1159. Because § 22-2801 was designed “to protect women from sexual assault” while § 22-2401 was intended “to protect human life,” the court concluded that cumulative punishment was permissible. 379 A. 2d, at 1159. Indeed, the Blockburger test itself could be viewed as nothing but a rough proxy for such analysis, since, by asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes.

Ill

In sum, I find the lower court's reliance upon articulated considerations much more persuasive than this Court’s capitulation to supposedly hopeless ambiguity. But even if the case were closer, I do not see how the lower court’s conclusion could be classified as “egregious error” so as to justify our superimposing our own - admittedly dubious construction of the statutes in question on the District of Columbia. Unless we are going to forgo deference to the interpretation of the highest court of the District of Columbia on matters of local applicability and are going to push several other well-recognized principles of statutory and constitutional construction out of shape, with consequences for the federal system for the 50 States, I would hope that the Court’s decision would be one ultimately based on the “rule of lenity.” Because I believe that the question confronting us is purely one of statutory construction and because I believe the analysis indulged in by the Court of Appeals for the District of Columbia comes far closer to the proper ascertainment of congressional intent than does this Court’s opinion, I would affirm the judgment of the District of Columbia Court of Appeals.

       The jury also convicted the petitioner of other felonies, but these convictions were set aside by the District of Columbia Court of Appeals, except for a second-degree murder conviction upon which the petitioner had received a concurrent sentence. The sentence itself was vacated by the appellate court.

       The statute also provides for a sentence of death upon conviction for first-degree murder, but that provision has been held to be unconstitutional. See United States v. Stokes, 365 A. 2d 615, 616, n. 4 (D. C. 1976); United States v. Lee, 160 U. S. App. D. C. 118, 123, 489 F. 2d 1242, 1247 (1973).

       This is not to say that there are not constitutional limitations upon this power. See, e. g., Coker v. Georgia, 433 U. S. 584; Roe v. Wade, 410 U. S. 113, 164; Stanley v. Georgia, 394 U. S. 557, 568; Loving v. Virginia, 388 U. S. 1, 12; Robinson v. California, 370 U. S. 660, 666-667.

       Although the courts of the District of Columbia were created by Congress pursuant to its plenary Art. I power to legislate for the District, see Art. I, § 8, cl. 17; D. C. Code § 11-101 (2) (1973), and are not affected by the salary and tenure provisions of Art. III, those courts, no less than other federal courts, may constitutionally impose only such punishments as Congress has seen fit to authorize.
      The Court has held that the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States. Dreyer v. Illinois, 187 U. S. 71, 84. See Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605, 615, and n. 13; Sweezy v. New Hampshire, 354 U. S. 234, 255; id., at 255, 256-257 (Frankfurter, J., concurring in result). It is possible, therefore, that the Double Jeopardy Clause does not, through the Fourteenth Amendment, circumscribe the penal authority of state courts in the same manner that it limits the power of federal courts. The Due Process Clause of the Fourteenth Amendment, however, would presumably prohibit state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law.

       Before 1962, conviction of first-degree murder in the District of Columbia led to a mandatory sentence of death by hanging. See Act of Mar. 3, 1901, § 801, 31 Stat. 1321. Accordingly, the question did not arise whether the sentence for another felony could run consecutively to that for first-degree murder. In 1962 Congress replaced the mandatory death penalty with the present language of D. C. Code § 22-2404 (1973), which allows, as an alternative to a penalty of death, a sentence of 20 years to life imprisonment. Pub. L. 87-423, 76 Stat. 46. Congress did not, however, address the matter of consecutive sentences in this amendatory legislation.
      The parties in the present case are in agreement that Congress intended a person convicted of felony murder to be subject to the same penalty as a person convicted of premeditated murder, see, e. g., 108 Cong. Rec. 4128-4129 (1962) (remarks of Sen. Hartke), and subject to more severe punishment than persons convicted of second-degree murder, see S. Rep. No. 373, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 677, 87th Cong., 1st Sess., 2 (1961). The parties disagree as to whether the consecutive sentences in this case are in accord with that congressional intent. The petitioner argues that if a consecutive sentence for rape were permitted, he would be punished more severely than if he had committed premeditated murder. The Government counters that the relevant comparison is with the sentences permitted for premeditated murder plus rape, which can be consecutive. Likewise, the Government argues that since consecutive sentences would be permissible for second-degree murder and rape, such sentences should be permitted here to avoid punishing felony murder and rape less harshly. In our view of this case, this controversy need not now be resolved.

       The Government would read D. C. Code § 23-112 to mean that courts may ignore the Blockburger rule and freely impose consecutive sentences “whether or not” the statutory offenses are different under the rule. While this may be a permissible literal reading of the statute, it would lead to holding that the statute authorizes consecutive sentences for all greater and lesser included offenses — an extraordinary view that the Government itself disavows. Such an improbable construction of the statute would, moreover, be at odds with the evident congressional intention of requiring federal courts to adhere to the Blockburger rule in construing the penal provisions of the District of Columbia Code. See infra, this page and 693.

       There may be instances in which Congress has not intended cumulative punishments even for offenses that are different under the general provision contained in § 23-112. For example, in this case the District of Columbia Court of Appeals vacated the petitioner’s sentence for second-degree murder, for the reason that, in the court’s view, second-degree murder is a lesser included offense of first-degree felony murder, notwithstanding the fact that each .offense requires proof of an element that the other does not. The correctness of the Court of Appeals’ ruling in this regard is not an issue in this case.

       Contrary to the view of the dissenting opinion, we do not in this case apply the Blockburger rule to the facts alleged in a particular indictment. Post, at 708-712. We have simply concluded that, for purposes of imposing cumulative sentences under D. C. Code § 23-112, Congress intended rape to be considered a lesser offense included within the offense of a killing in the course of rape.

       See n. 5, supra.

       This view is consistent with the settled rule that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,’ ” United States v. Bass, 404 U. S. 336, 347, quoting Rewis v. United States, 401 U. S. 808, 812. See Simpson v. United States, 435 U. S. 6; Ladner v. United States, 358 U. S. 169; Bell v. United States, 349 U. S. 81. As the Court said in the Ladner opinion: “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” 358 U. S., at 178.

       The Court in Brown cited the following decisions in support of its observations concerning the role of the Double Jeopardy Clause in multiple punishment cases: Gore v. United States, 357 U. S. 386 (1958); Bell v. United States, 349 U. S. 81 (1955); and Ex parte Lange, 18 Wall. 163 (1874). See also Ashe v. Swenson, 397 U. S. 436, 460, n. 14 (1970) (Brennan, J., concurring); M. Friedland, Double Jeopardy 205, 212 (1969); Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81, 112-113, 158-159; Note, Twice in Jeopardy, 75 Yale L. J. 262, 302-313 (1965).

       See People v. Hughes, 85 Mich. App. 674, 272 N. W. 2d 567 (1978); id., at 683-687, 272 N. W. 2d, at 569-571 (Bronson, J., concurring); id., at 687-696, 272 N. W. 2d, at 571-575 (Walsh,.J., dissenting); Ennis v. State, 364 So. 2d 497 (Fla. App. 1978); id., at 500 (Grimes, C. J., concurring) ; and State v. Frye, 283 Md. 709, 393 A. 2d 1372 (1978); id., at 725-726, 393 A. 2d, at 1380-1381 (Murphy, C. J., concurring). In each of these state cases, the panels divided on the meaning of this Court’s pronouncements respecting the Double Jeopardy Clause’s prohibition against multiple punishments. See also cases cited in n. 3, infra.

       Compare People v. Anderson, 62 Mich. App. 475, 233 N. W. 2d 620 (1975) (a case in which a state court concluded, based on relevant indicia of legislative intent, that cumulative punishments for armed robbery and a felony murder based upon that robbery were not intended), with State v. Pinder, 375 So. 2d 836 (Fla. 1979); State v. Frye, 283 Md. 709, 393 A. 2d 1372 (1978); State v. Innis, — R. I. —, 391 A. 2d 1158 (1978), cert. granted, 440 U. S. 934 (1979); Mitchell v. State, 270 Ind. —, 382 N. E. 2d 932 (1978); Briggs v. State, 573 S. W. 2d 157 (Tenn. 1978) (the latter decisions, erroneously I believe, gave controlling effect to Harris in challenges to cumulative punishments for felony murder and the underlying felony).

       The “same evidence” test was first formulated in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), where the Supreme Judicial Court of Massachusetts held:
      “A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”
      This Court has placed varying degrees of reliance upon this test both in the context of successive prosecutions, see, e. g., Brown v. Ohio, 432 U. S. 161 (1977); Gavieres v. United States, 220 U. S. 338, 342 (1911), and in the context of multiple punishments imposed at a single criminal proceeding. See, e. g., Blockburger v. United States, 284 U. S. 299 (1932); Carter v. McClaughry, 183 U. S. 365 (1902). See also infra, at 707-714.

       We are not dealing here, of course, with a case where a state court has engaged in “retroactive lawmaking” by interpreting a local statute in an unforeseeable manner. Compare Bouie v. City of Columbia, 378 U. S. 347 (1964), with Rose v. Locke, 423 U. S. 48 (1975).

       It should not matter whether the Blockburger test enters this case as a common canon of statutory construction, see Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975), or through the “less than felicitous” phrasing of D. C. Code § 23-112. See ante, at 691 (opinion of the Court). In either case, the dispositive question is whether the legislature intended to allow multiple punishments, and the Blockburger test should be employed only to the extent that it advances that inquiry.

       In this regard, see also the discussion of the sentencing scheme under 18 U. S. C. § 924 (c) (1), infra, at 709.

       But see Simpson v. United States, 435 U. S. 6, 11-12, and n. 6 (1978) (reserving application of Blockburger in context of 18 U. S. C. § 924 (c)); Jeffers v. United States, 432 U. S. 137, 149-150 (1977) Blackmun, J.) (assuming, arguendo, that 21 U. S. C. § 846 is a lesser included offense of 21 U. S. C. § 848). But see also American Tobacco Co. v. United States, 328 U. S. 781, 788 (1946) (finding, under Blocburger, that conspiracies to violate §§ 1 and 2 of the Sherman Act could be punished separately).

       The Court denies that it applies the Blockburger test to the indictment in this case, asserting instead that it merely concludes that “rape [is] to be considered a lesser offense included within the offense of a killing in the course of rape.” Ante, at 694, n. 8. Our disagreement on this matter turns on the elusive meaning of the word “offense.” Technically, § 22-2401 defines only one offense, murder in the first degree, which can be committed in any number of ways. Even if the inquiry is limited to the “sub-offense” of felony murder, § 22-2401 indicates that a person may be convicted if he kills purposely in the course of committing any felony or kills even accidentally in the course of committing one of six specified felonies. Only by limiting the inquiry to a killing committed in the course of a rape, a feat that cannot be accomplished without reference to the facts alleged in -this particular case, can the Court conclude that the predicate offense is necessarily included in the compound offense under Blockburger. Because this Court has never before had to apply the Blockburger test to compound and predicate offenses, see n. 5, supra, and accompanying text, there is simply no precedent for parsing a single statutory provision in this fashion.


author: Mr. Justice White Mr. Justice Stevens,

text:
    ANDRUS, SECRETARY OF THE INTERIOR v. IDAHO et al.
    No. 79-260.
    Argued February 25, 1980
    Decided April 16, 1980

      White, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNan, Stewart, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 731.

      Stuart A. Smith argued the cause for petitioner. On the briéf were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, William Alsup, Jacques B. Gelin, and Edward J. Shawaker.

      David H. Leroy, Attorney General of Idaho, argued the cause for respondents. With him on the brief were W. Hugh O’Riordan and Josephine P. Beeman, Deputy Attorneys General.

      Briefs of amici curiae urging affirmance were filed by Terry L. Crapo and Bex E. Lee for the Idaho Carey Act Development Association; and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, George Deukmejian of California, J. D. MacFarlane of Colorado, Michael T. Greeley of Montana, Richard H. Bryan of Nevada, James A. Redden of Oregon, Robert B. Hansen of Utah, Slade Gorton of Washington, and John D. Troughton of Wyoming.

   Mr. Justice White

delivered the opinion of the Court.

The Carey Act of 1894, ch. 301, § 4, 28 Stat. 422, 43 U. S. C. § 641, “to aid public-land States” in the reclamation of desert lands, authorizes the Secretary of the Interior upon proper application “to contract and agree, from time to time . . . binding the United States to donate, grant, and patent” such desert lands, not exceeding a specified acreage, as the State should cause to be irrigated, reclaimed, and occupied, provided, however, that the lands would be restored to the public domain if reclamation had not begun and plans were not carried out within stated time limits. Originally, each State covered by the Act was limited to one million acres; but in 1908, the ceiling for Idaho was raised to three million acres. Also, in 1910, upon request of a State, the Secretary was authorized to withdraw desert lands temporarily from the public domain prior to the State’s submission of a formal plan under the Carey Act. 36 Stat. 237, 43 U. S. C. § 643 (1970 ed.).

Of all Carey Act patents issued, a large majority were issued early in the century, the scarcity of water for irrigation being primarily responsible for the absence of patents in the past 30 years. Improved technology for pumping from deep water sources, however, .among other things, has revived interest in reclaiming arid lands.

In 1974, the State of Idaho, acting pursuant to 43 U. S. C. § 643, requested that an identified tract of some 27,400 acres be temporarily withdrawn from the public domain pending the submission of a proposed development plan as required by the Carey Act. In January 1975, the Idaho State Office, Bureau of Land Management, rejected the application in part because some of the lands requested had already been withdrawn for other purposes, including a portion being used as a stock driveway. Idaho appealed to the Interior Board of Land Appeals with respect to the lands previously withdrawn for stock-driveway purposes. Idaho also filed with the Board a petition under § 7 of the Taylor Grazing Act, 48 Stat. 1272, as amended, 49 Stat. 1976, 43 U. S. C. § 315f, for reclassification of the stock-driveway lands as suitable for use under the Carey Act.

The Board, in its decision issued on July 31, 1975, found that the applicable regulations prevented it from withholding action on the Carey Act application pending a decision on the Taylor Act reclassification petition. The Board then rejected Idaho’s assertion that its Carey Act application took precedence over any withdrawal subsequent to the date of the Act because the Act was a grant in praesenti or because the grant, when the specified conditions were fulfilled, related back to the date of the Act. The Board adhered to its prior decision in State of Wyoming, 36 L. D. 399 (1908), which held that under the Carey Act “the acceptance of the offer of the State is a matter wholly within the discretion of the Department.” That being so, the State had no rights whatsoever to have any application approved. The Board further repeated Wyoming’s statement that if lands had been withdrawn for other purposes, the presumption that the withdrawal was proper is “conclusive,” the lands were not available for a claim under the Carey Act, and the State was not entitled to a hearing “for the purpose of determining whether or not [the Secretary’s] discretion has been properly exercised.” Id., at 400. The’ Board, therefore, affirmed the rejection of Idaho’s Carey Act application. The case was returned to the Bureau of Land Management for initial action on the petition for reclassification of the stock-driveway lands and for further action on the remaining lands covered by the application for temporary withdrawal.

Meanwhile, in February 1975, the State of Idaho, through its appropriate officials, filed a complaint in the United States District Court for the District of Idaho against the Secretary of the Interior. The State alleged that by virtue of the Carey Act, the United States “has bound itself to donate, grant and patent to the State of Idaho . . . three million acres of desert lands,” that “these lands are subject to temporary withdrawal and/or segregation upon [the State’s] request,” that the Secretary is “without any discretion to deny desert lands once requested,” and that the Secretary now asserts that “he will not allow the requests for segregation or withdrawal under the Carey Act as a matter of right.” The State prayed for a declaration of its rights under the Carey Act. The Secretary’s answer admitted that he would not allow requests for segregation or withdrawal as a matter of right but denied the remainder of the foregoing allegations.

On cross-motions for summary judgment, Idaho submitted that the Carey Act had been an immediately effective grant, or at least that the United States was firmly obligated to contract with and patent the statutory acreage to Idaho when and if Idaho satisfied the statutory preconditions. In the State’s view, Carey Act applications took precedence over prior withdrawals. The Secretary, therefore, had been wrong to deny Idaho’s request for temporary withdrawal, even though the specified lands had already been withdrawn for other purposes. The United States, to the contrary, asserted that the Carey Act granted nothing to Idaho, had not obligated the Secretary to contract with Idaho with respect to any desert lands selected by the State, but had merely authorized the Secretary to contract if he, in his unbridled discretion, saw fit to do so. The Secretary, therefore, had committed no error and had not exceeded his authority under the Carey Act or any other law when he denied the petition for temporary withdrawal.

The District Court, in its memorandum opinion and decision of July 15, 1976, rejected the State’s claim that the Carey Act was an in praesenti grant giving the State an absolute right to the acreage specified in the Act. The District Court went on to hold, however, (1) that Idaho was “guaranteed a maximum entitlement of three million acres of suitable desert land . . . which it cannot be deprived of by the Secretary of the Interior, if the State meets the conditions of the Carey Act”; (2) that “[t]he Secretary is under an obligation to, preserve enough desert land suitable for Carey Act development to fulfill the State’s right of entitlement, which the Federal Government must contract to donate to the State in accordance with the Act”; and (3) that “[t]o the extent the land has been withdrawn for other purposes” and the State desires the land for Carey Act development, “its remedy is to petition the Secretary to reclassify the lands suitable for Carey Act entry,” in which event “[t]he Secretary may not arbitrarily deny the State’s application for reclassification,” his ruling thereon being subject to judicial review under the Administrative Procedure Act, 5 U. S. C. § 706. 417 F. Supp. 873, 881 (1976). The District Court went on to indicate its affirmance of the Interior Board of Land Appeals’ decision and to this extent granted the Secretary’s motion for summary judgment.

The Secretary moved for reconsideration and modification of the decision. The District Court again heard oral argument. After first suggesting that the District Court had erred in construing the Carey Act instead of merely sustaining the administrative action, the Secretary then agreed that the case had proceeded as a declaratory judgment action, or at least that it had a declaratory judgment dimension. The Secretary again presented his position that the Carey Act placed no obligation whatsoever on him to enter into any contract with Idaho or to approve any Carey Act application filed by the State.

In this respect, the judge expressed his disagreement and on August 26, 1976, entered his judgment, which, as amended in minor respects on November 15, (1) rejected the State’s prayer for declaration of its absolute right to demand three million acres of the public domain without regard to any previous classifications and withdrawals and affirmed the decision of the Interior Board of Land Appeals; (2) declared that Idaho is “entitled to have withdrawn and patented three million acres of the desert lands in the public domain,” provided that there are sufficient desert lands within the State of Idaho and provided that Idaho satisfies all the terms and conditions of the Act, and declared that by the Carey Act the United States had “bound itself to contract, donate, grant and patent to the State of Idaho, upon compliance with the stated conditions, . . . not to exceed three million acres [of desert land], as that sum may be reduced by prior patents issued pursuant to the Carey Act”; and (3) declared that with respect to desert lands presently withdrawn from the public domain for other purposes, the State’s remedy, should it desire to initiate Carey Act development on such lands, “is to petition the [Secretary] for temporary withdrawal under 43 U. S. C. Sec. 643 and/or under 43 U. S. C. Sec. 315f, and it is the duty of the [Secretary] to entertain and act upon said petition or petitions in accordance with the public land laws of the United States of America and in accordance with due and proper administrative procedures.”

The Ninth Circuit affirmed the judgment “[u]pon the basis of the carefully written opinion” of the District Judge. 595 P. 2d 524 (1979). We granted the petition for writ of certiorari filed by the United States and presenting the single question whether the Carey Act “requires the Secretary of the Interior indefinitely to reserve from appropriation to other public or private uses some 2.4 million acres of desert land within Idaho for the eventuality that the State may be able and willing to select all or any part of such acreage for irrigation and reclamation under the Act.” 444 U. S. 914 (1979).

I

There is first the question raised at the oral argument of this cause whether there is a case or controversy between the State and the Secretary as to anything other than the State’s entitlement to the lands that had been withdrawn for stock-driveway purposes and that were involved in its Interior Department appeal; or, to put the matter another way, whether there is a real case or controversy with respect to the issue that the United States presented in its petition.for cer-tiorari, namely, whether the State was entitled to 2.4 million acres of desert land which the Secretary then must preserve for Carey Act development. Although the United States urged on appeal in the Court of Appeals that there was no case or controversy whatsoever, even as to any of the lands covered by Idaho’s Carey Act application for temporary withdrawal, the Court of Appeals apparently rejected the argument; the United States raised no jurisdictional question in its petition or its brief; and the Solicitor General at oral argument was of the opinion that the District Court and the Court of Appeals had jurisdiction to enter the judgments that appear in this record. We have the same view.

From the very outset, the State took the position that it is absolutely entitled to select and have withdrawn under the Carey Act up to 2.4 million acres of desert land, provided only that it satisfy the statutory preconditions. Whether or not the lands that it designated had already been withdrawn for other purposes, such as a stock driveway, it was the State’s view that the Secretary had no discretion to deny withdrawal of desert lands that the State selected. The Secretary, on the other hand, from the outset, denied that the State had any right to contract for desert lands under the Carey Act and asserted that it was within his discretion to deny any and all state requests for withdrawal or segregation of lands under the Carey Act, whether or not the selected lands were already in use for other purposes. These were the respective positions of the parties in the Interior Department proceedings, with the Interior Board of Land Appeals rejecting the State’s and adopting the Secretary’s position.

These were also the positions of the parties in the District Court. The State and the Secretary were thus at odds over the proper construction of the Carey Act, over the State’s entitlement under the statute, and over the extent of the Secretary’s discretion. If the State was correct as to the meaning of the Act, the denial of its request for withdrawal of the stock-driveway lands was incorrect; but the denial was correct if the Secretary had the better view of the statute. We thus find it undeniable that there was a case or controversy between the Secretary and the State with respect to the approval of its Carey Act application and that the case or controversy in this respect turned on what rights, if any, the State had under this 1894 statute. Although at the time that the case was filed in the District Court, the State’s administrative appeal had not yet been decided, a case or controversy in the Art. Ill sense existed; and, in any event, administrative appellate procedures were soon exhausted. The District Court accepted the case as involving a review of the Secretary’s 'action.-and as requiring a declaration of the respective rights of the State and the Secretary under the Act.

In proceeding to address the statutory issues tendered by the State, the District Court rejected both the position of the State and that of the Secretary. The State was entitled to up to 2.4 million acres of desert land for which the Secretary was obligated to contract with the State pursuant to the terms of the Act; but the Act was not a grant in praesenti, and the State did not have an absolute right to the particular desert lands that it happened to select. If the lands had been withdrawn for another public use pursuant to another statute, the State’s remedy was to request reclassification, which the Secretary could not arbitrarily deny. Under this approach, the Secretary was correct in denying the State’s request for immediate withdrawal of the lands already in use as a stock driveway; but the Secretary was quite wrong in claiming absolute discretion to deny any Carey Act application, including the State’s pending application insofar as it covered lands that had not yet been withdrawn for other purposes.

These elements were included in the District Court’s judgment and were supported by its opinion. We find no jurisdictional barrier to the entry of such a judgment or to appellate review of that part of the judgment to which the United States objects as a misconstruction of the Carey Act and as an unwarranted extension of rights to the State that would, constitute a substantial interference with the authority of the Secretary to manage the public lands.

II

As was set out above, the judgment declared that Idaho is “entitled” to 2.4 million acres of Carey Act land and that the Secretary is “bound” to contract for such lands. Although the judgment did not prevent the Secretary from putting desert lands to other uses, the judgment, fairly read, would obligate the Secretary to contract with the States for lands selected by it that had not been so withdrawn, if the . State complied with the statutory conditions. The Secretary submits that the Act does not so drastically limit his discretion. He also understands these same provisions of the judgment to mean that he “must hold for eventual disposition under the Carey Act approximately 2.4 million acres of unappropriated desert lands.” Brief for Petitioner 8. At least that much desert land, he says, must be reserved and may not be put to other uses. Although the judgment does not so provide in so many words, it is fairly arguable that this is what the trial court intended, particularly because in its opinion, which the Court of Appeals made its own, the trial court held that the State is “guaranteed” the statutory acreage, “which it cannot be deprived of by the Secretary,” and that the Secretary is under an “obligation to preserve enough desert land suitable for Carey Act development” to fulfill the State’s entitlement. The precise meaning of the judgment in this respect, however, we do not further pursue; for as we understand the language and legislative history of the Carey Act, it neither requires the Secretary to hold the statutory acreage in reserve nor obliges him always to contract with the State for desert lands that the State selects from those parts of the public domain that have not been withdrawn for other purposes.

The language of the Act “authorize^] and empower[s],” but does not direct, the Secretary to contract with the State upon the State’s proper application. This is permissive language, as compared with the obligatory statutory language requiring the Secretary to issue a patent once he has contracted with the State and the State has satisfied the contractual and statutory conditions. Furthermore, the Secretary may act only with the approval of the President, a provision which strongly suggests that the statutory discretion to contract is broader than merely determining whether the application on its face satisfies the statutory requirements.

In ascertaining the meaning of the relevant language of the Act, it is important to note the circumstances of its adoption in 1894. The initial version of the Act was adopted in the Senate as an amendment to an appropriations bill that had already passed the House. The amendment, which was offered by Senator Carey of Wyoming, was in the form of a Senate bill that had previously been offered by the Senator and passed by the Senate but was still pending before a House committee. This bill, and the amendment to the appropriations bill, provided that each State could select up to the specified acreage of desert lands and that upon selection the lands would be immediately reserved from other entry and would be patented to the State upon proof that the selected land had been suitably reclaimed. The House conferees brought the amended appropriations bill before the House where a substitute for the Senate amendment was offered by Representative McRae and was adopted after full debate. The Conference Committee then adopted the House substitute, and it was this version that became known as the Carey Act.

For present purposes, the principal difference between the Senate amendment and the McRae substitute was that the former provided for automatic reservation upon selection by the State and the latter did not. As Representative McRae explained, 26 Cong. Rec. 8391 (1894): “The Senate proposition makes a reservation outright for the States and will make it possible for the States to put a million of acres in each State in reservation for an indefinite period. . . . The pending proposition does not make any grant, but only authorizes the Secretary of the Interior with the approval of the President to make a contract with any States in which any of these lands may be situated. . . .” And again, id., at 8431: “This is no grant at all, but only gives authority to the Secretary of the Interior and President to make contracts binding the United States to donate the land to the States when reclaimed.” There are some indications during the debates, originating from both proponents and opponents of the provision, that perhaps a more substantive action was intended; but there is nothing that undercuts the explanation of Representative McRae as to the meaning of the markedly different language contained in the House substitute. Nor is there anything persuasive in the several later additions or amendments to the Carey Act to indicate that the Act reserved to the States or obligated the Secretary to contract for any particular acreage for Carey Act development.

It has also been the consistent view of the Department of the Interior that the Carey Act does not grant or reserve any specified acreage of desert lands for development under the Carey Act. State of Wyoming, 36 L. D. 399 (1908), relied on by the Secretary in this case, stands for at least this much; and we have in other cases accorded a considerable deference to the responsible agency’s construction of the statute which it administers. Andrus v. Charlestons Stone Products Co., 436 U. S. 604, 613-614 (1978); Udall v. Tollman, 380 U. S. 1, 16 (1965); Cameron v. United States, 252 U. S. 450, 460 (1920). It is also ascertainable from the Congressional Record, reflecting the proceedings connected with the 1908 amendments to the Carey Act, that the eight States covered by the Act had by that time selected approximately 2.72 million acres under the Carey Act but that less than half that amount, 1.12 million acres, had been approved and only 200,000 acres had gone to patent. One of the many reasons for rejections of selected lands had been that they were already in other legitimate use or that such use was being considered. 42 Cong. Rec. 6437 (1908).

Against this background, we conclude that Congress did not intend to reserve any specific number of acres of desert land for any State under the Carey Act and that the Act does not prevent the Secretary from committing otherwise available parts of the public domain for any of the uses authorized under the various statutes relating to the use and management of the public lands, such as the Taylor Grazing Act under which part of the lands that Idaho sought in this case have been withdrawn. It is also clear that one of the reasons prompting the McRae substitute was to eliminate the right of the State under the Senate version to have automatically reserved, and to contract for the particular lands that it selected. As finally adopted, the Act does not oblige the Secretary automatically to contract for lands chosen by the State even if its application otherwise conforms to the statute. Hence, even though a State’s selection has not been withdrawn for other uses, as is the case with part of the land that Idaho applied for in this case, the Secretary need not always approve the application.

The. District Court was therefore correct in remitting the State to a reclassification proceeding with respect to the land in use as.a stock driveway; but the District Court erred in declaring that the Act entitled the State to the statutory acreage in the sense that the Secretary was firmly bound to reserve such acreage and to contract for it as and when the State selected it..

For the foregoing reasons, the judgment of the Court of Appeals is affirmed in part and reversed in part.

So ordered.

Mr. Justice Stevens,

dissenting.

Everyone agrees that the District Court correctly rejected Idaho’s now-abandoned claim that the Carey Act, as amended, constituted an absolute, present grant of . entitlement to any three million acres of arid lands that the State might designate at some time in the future. But the District Court’s rejection of that claim did not require it to express any opinion on any of the questions that the Court discusses today.

This record does not present the question of what reasons, if any, are necessary or sufficient to justify a denial by the Secretary of a Carey Act application or a petition for reclassification under the Taylor Grazing Act. I would therefore express no opinion on that question.

Nor is there anything in this record to suggest that there is any imminent likelihood that the Secretary will reserve for other purposes so much of the federal land in Idaho otherwise suitable for Carey Act contracts that less than 2.4 million acres will be available. Unless and until such a likelihood appears, there is no need to decide whether he may do so. The fact that in the 85-year life of the Carey Act Idaho has used only about one-fifth of the three million acres authorized makes it rather clear that resolution of that issue is of no immediate consequence to either party.

In short, I do not believe either of the questions on which the Court has volunteered its advice is ripe for decision. I would simply vacate the purely advisory portions of the District Court’s judgment and refrain from deciding any questions not fairly raised by this record.

       This legislation was prompted by a desire to prevent speculative filings under entry statutes on land chosen by a State for a Carey Act project. S. Rep. No. 367, 61st Cong., 2d Sess. (1910); H. R. Rep. No. 662, 61st Cong., 2d Sess. (1910). After the decision and judgment of the District Court in this case, this provision was repealed by § 704 (a) of the Federal Land Policy and Management Act of 1976 (FLPMA), Pub. L. 94-579, 90 Stat. 2792. Under § 204 of FLPMA, 43 U. S. C. § 1714, however, which gives the Secretary the general authority to make withdrawals, the Secretary construes his authority to allow him to withdraw public lands from entry pending submission of a formal plan under the Carey Act.

       On the State’s failure to appeal the denial with respect to the lands coveted by the application that had been withdrawn for purposes other than a stock driveway, the order as to these lands became final.

       The Board cited its stock-driveway regulations providing that “[l]ands withdrawn for driveways for stock ... are not subject to entry or disposition” and that applications for the acquisition of such lands shah be rejected. 43 CFR § 2313.1 (c) (1974). The Board also relied on a general regulation, 43 CFR § 2091.1 (a) (1974), providing in pertinent part that “applications which are accepted for filing must be rejected and cannot be held pending possible future availability of the land or interests in land, when approval of the application is prevented by . . . [withdrawal or reservation of lands.” The Board’s prior cases are also to this effect.

       The State alleged jurisdiction in the District Court “by virtue of a federal question existing and amounts of money involved ... in excess óf $10,000, exclusive of costs and interest.” The State also alleged jurisdiction “pursuant to the Federal A. P. A. (5 XJSC 701 et seq).” The complaint did not recite that the State.sought relief pursuant to the Declaratory Judgment Act, 28 U. S. C. § 2201, but the District Court understood the complaint as seeking declaratory relief.

         In the Court of Appeals, the Secretary conceded that a case or controversy had existed with respect to the stock-driveway lands for which temporary withdrawal had been requested under § 643 but asserted that the controversy had become moot with the repeal of § 643. The Secretary now concedes, however, that under the Federal Land Policy and Management Act of 1976, even though it repealed § 643, he has the same power of temporary withdrawal as he had under § 643. See n. 1, supra.

       The State has not cross petitioned from the holding that the Carey Act is not a grant in praesenti and that a Carey Act application does not automatically take precedence over prior withdrawals. The State as a respondent is not entitled, absent a cross-petition, to bring that issue before us; for a favorable ruling would enlarge the relief granted the State under the Court of Appeals judgment. The State does of course strongly urge, as it may, that it is entitled to at least what the District Court recognized to be its rights under the Carey Act.

       The Carey Act, 43 U. S. C. § 641, provides in pertinent part:
      “To aid the public-land States in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small tracts to actual settlers, the Secretary of the Interior with the approval of the President ... is authorized and empowered, upon proper application of the State to contract and agree, from time to time, with each of the States in which there may be situated desert lands . . . binding the United States to donate, grant, and patent to the State free of cost for survey or price such desert lands, not exceeding one million acres in each State, as the State may cause to be irrigated, reclaimed, occupied, and . . . cultivated by actual settlers . . . within ten yearn from the date of approval by the Secretary of the Interior of the State’s application for the segregation of such lands. . . .”
      Section 641 further provides that if the requirements as to reclamation are not satisfied within certain time periods, the Secretary may restore the lands to the public domain or may authorize limited extension of the deadlines.

       The District Court purported to find some support for its conclusion in Idaho Irrigation Co. v. Gooding, 265 U. S. 518, 521 (1924), where the Court recited that the Carey Act “binds” the United States to donate desert lands to the States. The passage referred to, however, does not say that the United States is bound to contract in the first instance. In any event, that case involved a dispute between an irrigation company and the owners of water rights pursuant to contracts with the company; and it was only in describing the background of the case that the Court referred to the Carey Act. There was no question in that case as to the scope of the State’s entitlement under the Act or the scope of the Secretary’s discretion. Attaching great significance to this recitation is unwarranted. Nor do we find the other state and federal cases that the District Court cited to be persuasive support for its conclusions as to the Secretary’s obligations.

       In 1896, Congress provided that patents could be issued when water had been supplied to the land without regard to settlement or cultivation. The same Act provided for liens against the lands prior to patent for the costs of reclamation. Act of June 11, 1896, § 1, 29 Stat. 434, 43 U. S. C. § 642. Although § 642 refers to the “grant” made under § 641, the context indicates that the word is loosely used to refer to the state laws enacted in acceptance of the terms of the Carey Act. Idaho, in fact, stresses that it, like 9 of the 11 other desert land States, specifically referred to the Carey Act’s “grants of land” when the State enacted legislative acceptances of the offer to obtain federal lands by reclamation. Brief for Respondents 12-13, and n. 6.
      Subsequent legislation did not touch on the issue at all. In 1908, an additional two million acres of desert lands were authorized for Carey Act selection in the State of Idaho, 43 U. S. C. § 645 and Joint Res. 28, 60th Cong., 1st Sess. (1908), see 35 Stat. 577; and an additional one million acres in the State of Wyoming. 43 U. S. C. § 645. In 1909, the provisions of the Carey Act were extended to the States of Arizona and New Mexico, § 646, and to the former Ute Indian Reservation in Colorado. § 647. In 1910, as indicated in the text, § 643 with respect to temporary withdrawals was adopted. In 1911, the Act was extended to the Fort Bridger Military Reservation in Wyoming, Act of Feb. 16, 1911, ch. 90, 36 Stat. 913; and an additional one million acres were authorized for the States of Nevada and Colorado. 43 U. S. C. § 645. The Act was amended in 1920 with respect to rights of entry by settlers on lands covered by unsuccessful Carey Act projects. § 644. In 1921, the Secretary of the Interior was authorized to extend the period of segregation or to restore the lands to the public domain when States failed to construct the anticipated reclamation works. § 641. Congress at no time indicated disagreement with the way that the Secretary was administering the Carey Act, at least as relevant to the issues in this case.

       During the discussion, Representative Gaines of Tennessee asked Representative French of Idaho to explain why the Secretary had not granted all Carey Act applications. Representative French replied:
      “The reason is this: We have a national reclamation law under which lands are being reclaimed; we have the Indian reservation law; we have lands that have passed into private ownership under the desert-land act and other laws. Sometimes it happens that an application for segregation under the Carey Act overlaps one or more of these propositions or tracts of land.”

       Prior to the District Court’s judgment, the Board also ruled on two other Carey Act applications by Idaho covering unwithdrawn and otherwise available land. Idaho Department of Water Resources, 25 I. B. L. A. 27 (1976); Idaho Department of Water Resources, 24 I. B. L. A. 314 (1976).

       The Secretary has not questioned the judgment and opinion of the District Court indicating that the Secretary’s refusal to reclassify withdrawn lands for Carey Act purposes would be subject to judicial review and would be set aside if arbitrary or capricious. Neither has the Secretary asserted that his rejection of a State’s application for withdrawal or segregation of appropriate desert lands in the public domain would not be subject to judicial review under the Administrative Procedure Act, 5 U. S. C. § 706. To the extent that the claim of absolute discretion to approve or disapprove Carey Act applications is inconsistent with, the absence of a direct challenge to this aspect of the District Court’s decision or with the general standards for judicial review of agency action under the Administrative Procedure Act, we reject, as did the District Court, the claim of absolute discretion.

       Idaho’s complaint prayed simply for a declaration that “the State of Idaho has an absolute right to demand up to three million acres of desert lands under the Carey Act and further . . . that the [Secretary of the Interior] . . . has no authority or discretion to deny any request for segregation or withdrawal when presented by the Plaintiff.” App. 6.

       It was suggested by the State at oral argument that perhaps as much as 8.5 million acres is “susceptible of possible irrigation that is still in Federal hands.” Tr. of Oral Arg. 31. To date, Idaho has received approximately 600,000 acres under the Carey Act.


text:
    February 25, 1980
    No. 79-953.
    Feeney v. Personnel Administrator of Massachusetts et al.
   Affirmed on appeal from D. C. Mass.


text:
    No. D-173.
    In re Disbarment of Salls.
    [For earlier order herein, see 444 U. S. 894.]
   Disbarment entered.


text:
    No. D-178.
    In re Disbarment of Smith.
    [For earlier order herein, see 444 U. S. 912. ]
   Disbarment entered.


text:
    No. 9,
    Orig.
    United States v. Louisiana et al.
    [For earlier order herein, see, e. g., 444 U. S. 1.064.]
   Motion of Louisiana for divided argument, granted.

Mr. Justice Marshall took no part in the consideration or decision of this motion.


text:
    No. 78-6885.
    Hicks v. Oklahoma.
   Ct. Crim. App. Okla. [Certiorari granted, 444 U. S. 963.] Motion of Jan Eric Cartwright, Attorney General of Oklahoma, to permit Janet L. Cox to present oral argument pro hoc vice granted.


text:
    No. 79-4.
    No. 79-5.
    No. 79-491.
    Williams et al. v. Zbaraz et al.; Miller, Acting Director, Department of Public Aid of Illinois, et al. v. Zbaraz et al.; and United States v. Zbaraz et al.
   D. C. N. P. Ill. [Probable jurisdiction postponed, 444 U. S. 962.] Petition for rehearing of denial of motion for appointment of Alan Ernest as counsel for children unborn and born alive denied.


text:
    No. 79-66.
    Aaron v. Securities and Exchange Commission.
   C. A. 2d Cir. [Certiorari granted, 444 U. S. 914.] Motion of Securities Industry Association for leave to participate in oral argument as amicus curiae denied.


text:
    No. 79-509.
    Exxon Corp. v. Department of Revenue of Wisconsin.
   Sup. Ct. Wis. [Probable jurisdiction noted, 444 U. S. 961.] Motions of Frank M. Keesling and Multi-state Tax Commission for leave to file briefs as amici curiae granted.