author: Per Curiam.

text:
    BURTON v. STEWART, SUPERINTENDENT, STAFFORD CREEK CORRECTIONS CENTER
    No. 05-9222.
    Argued November 7, 2006
    Decided January 9, 2007

      Jeffrey L. Fisher, by appointment of the Court, post, p. 807, argued the cause for petitioner. With him on the briefs were Pamela S. Karlan, Amy Howe, Kevin K. Russell, Brian Tsuchida, Laura E. Mate, and Thomas C. Goldstein.

      William Berggren Collins, Deputy Solicitor General of Washington, argued the cause for respondent. With him on the brief were Rob McKenna, Attorney General, Carol A. Murphy, Deputy Solicitor General, and Paul Douglas Weisser and John J. Samson, Assistant Attorneys General.

      Matthew D. Roberts argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Joel M. Gershowitz

        Sheryl Gordon McCloud, Pamela Harris, and Suzanne Elliott filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.
      A brief of amici curiae urging affirmance was filed for the State of Indiana et al. by Steve Carter, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, and Stephen R. Creason, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Mike Beebe of Arkansas, John W. Suthers of Colorado, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Michael A. Cox of Michigan, Mike McGrath of Montana, George J. Chanos of Nevada, Jim Petro of Ohio, Hardy Myers of Oregon, Henry D. McMaster
        of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Robert F. McDonnell of Virginia, William Sorrell of Vermont, and Patrick J. Crank of Wyoming.
      Briefs of amici curiae were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Law Offices of Robert A. Ratliff by Mr. Ratliff, pro se.

   Per Curiam.

We granted certiorari in this case, 547 U. S. 1178 (2006), to determine whether our decision in Blakely v. Washington, 542 U. S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review. We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U. S. C. § 2244(b). That failure deprived the District Court of jurisdiction to hear his claims. Accordingly, we vacate the judgment of the Court of Appeals and remand with instructions to direct the District Court to dismiss petitioner’s habeas corpus application for lack of jurisdiction.

I

On October 31, 1994, a Washington jury convicted petitioner Lonnie Burton of rape, robbery, and burglary. App. 3-4. The state trial court initially entered judgment and sentence on December 19, 1994 (1994 judgment). In that judgment, the court sentenced Burton to a total of 562 months in prison. State v. Burton, No. 35747-6-I etc., 1997 WL 306429, *12 (Wash. App., June 9,1997). The trial court rested the 562-month sentence on two alternative grounds under Washington’s determinate sentencing scheme. First, it sentenced Burton to within-guidelines sentences for each offense — 153 months for robbery, 105 months for burglary, and 304 months for rape — and directed that the sentences be served consecutively, for a total term of 562 months. Id., at *13. Under Washington’s “multiple offense policy,” imposition of consecutive sentences constitutes an “exceptional” sentence, Wash. Rev. Code §§ 9.94A.120(18), 9.94A.400(l)(a) (2000), but the trial court justified such a sentence on the ground that running the three terms concurrently would result in a sentence “clearly too lenient” in light of the purposes of Washington’s sentencing scheme. See § 9.94A.390(2)(i). The second basis on which the court calculated a 562-month term was by running the sentences concurrently but imposing an exceptional sentence of 562 months solely for the rape conviction — again on the ground that the total sentence would otherwise be “clearly too lenient.” State v. Burton, 1997 WL 306429, at *13.

After an unrelated prior conviction was overturned, Burton requested resentencing. Accordingly, over a year after the 1994 judgment, the trial court entered an amended judgment and sentence (1996 judgment), which, after recalculating Burton’s offender scores, imposed a new sentence that relied solely on an exceptional 562-month sentence for the rape conviction, run concurrently with the other two terms. Ibid.; App. 45. On direct review, the Washington Court of Appeals upheld Burton’s conviction, State v. Burton, supra, a decision the Washington Supreme Court declined to review, State v. Burton, 133 Wash. 2d 1025, 950 P. 2d 475 (1997), cert. denied, 523 U. S. 1082 (1998). The State Court of Appeals remanded for resentencing, however, because the trial court’s exclusive reliance on the exceptional rape sentence decreased Burton’s potential early release credits, raising vindictiveness concerns. State v. Burton, 1997 WL 306429, at *14.

In response, on March 16, 1998, the trial court entered a second amended judgment and sentence (1998 judgment). App. 8. In this judgment, the trial court recited the jury’s 1994 guilty verdicts, id., at 3-4, and again imposed a 562-month sentence, reverting to its original basis for doing so— running the three within-guidelines sentences consecutively, id., at 7, 29-32. Burton sought review of this sentence, but the Washington courts eventually rejected his challenges both on direct review and in state postconviction proceedings. Id., at 43-55; App. to Brief for Petitioner la-4a.

On December 28,1998, while state review of his sentence was still pending, Burton filed a petition under 28 U. S. C. § 2254 for a writ of habeas corpus in the United States District Court for the Western District of Washington (1998 petition). App. 34. The standard form he filled out warned applicants that they must “ordinarily first exhaust... available state court remedies as to each ground on which” they sought “action by the federal court,” or run the risk of being “barred from presenting additional grounds at a later date.” Id., at 37-38. Burton nonetheless challenged his custody only by disputing the constitutionality of his three convictions, not by pressing any sentencing claims. Where the form requested the “[d]ate of judgment of conviction,” Burton listed “Dee. 16,1994,” corresponding roughly to the date of the 1994 judgment. Id., at 34. The form asked whether the applicant had “any petition or appeal now pending in any court, either state or federal, as to the judgment under attack,” to which Burton answered “Yes,” explaining that “[the] sentence I received at resentencing is on direct appeal.” Id., at 40 (emphasis added). The District Court denied relief, id., at 42, and the United States Court of Appeals for the Ninth Circuit affirmed, Burton v. Walter, 21 Fed. Appx. 632 (2001), cert. denied, 535 U. S. 1060 (2002).

Over three years subsequent to filing the 1998 petition, after the Washington courts had rejected his sentencing challenges, Burton filed another federal habeas petition (2002 petition), again in the Western District of Washington. This time, Burton claimed to be contesting the 1998 judgment, and challenged only the constitutionality of his sentence. In particular, he alleged that it violated our decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), to the extent the sentencing court departed from a standard sentence based on its own factual determinations. The District Court again denied the petition, App. 77, and the Ninth Circuit again affirmed, Burton v. Waddington, 142 Fed. Appx. 297 (2005). Both courts rejected the State’s contention that the District Court lacked jurisdiction to entertain the petition because Burton had not obtained an order from the Court of Appeals authorizing him to file a “second or successive” habeas petition, as required by the habeas gatekeeping provisions, 28 U. S. C. § 2244(b)(3). On the merits, the Ninth Circuit rejected Burton’s Apprendi claim and agreed with the State that Burton could not benefit from Blakely v. Washington, 542 U. S. 296, because that decision announced a new rule that did not apply retroactively to Burton’s sentence. 142 Fed. Appx., at 299.

It is this petition, the 2002 petition, that is before us today. We conclude, though, that because the 2002 petition is a “second or successive” petition that Burton did not seek or obtain authorization to file in the District Court, the District Court never had jurisdiction to consider it in the first place.

II

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court,” 28 U. S. C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody, § 2244(b)(1). In pertinent part, before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U. S. 524, 529-530 (2005); see also Felker v. Turpin, 518 U. S. 651, 656-657, 664 (1996).

Burton’s 2002 petition was a “second or successive” habeas application for which he did not seek, much less obtain, authorization to file. When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Burton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it.

The Ninth Circuit determined that the 2002 petition was not “second or successive” because, under McCleskey v. Zant, 499 U. S. 467 (1991), Burton had a “legitimate excuse for failing to raise” his sentencing challenges in the 1998 petition. 142 Fed. Appx., at 299 (quoting McCleskey, supra, at 490; internal quotation marks omitted). Specifically, the Ninth Circuit reasoned that because Burton had not exhausted his sentencing claims in state court when he filed the 1998 petition, “they were not ripe for federal habeas review” at that time. 142 Fed. Appx., at 298.

We assume for purposes of this case, without deciding, that the Ninth Circuit’s “legitimate excuse” approach to determining whether a petition is “second or successive” is correct. That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s. The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520-522 (1982), stated that district courts should dismiss “mixed petitions” — those with exhausted and unexhausted claims— and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485-486 (2000).

Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles. Lundy, supra, at 520-521 (plurality opinion); see also Slack, supra, at 486-487. As noted, the form Burton used in filing his first petition warned of just that consequence. App. 37-38; supra, at 151. There is no basis in our cases for supposing, as the Ninth Circuit did, that a petitioner with unexhausted claims who chooses the second of these options — who elects to proceed to adjudication of his exhausted claims — may later assert that a subsequent petition is not “second or successive” precisely because his new claims were unexhausted at the time he filed his first petition. This reasoning conflicts with both Lundy and § 2244(b) and would allow prisoners to file separate habeas petitions in the not uncommon situation where a conviction is upheld but a sentence is reversed. Such a result would be inconsistent with both the exhaustion requirement, with its purpose of reducing “piecemeal litigation,” Duncan v. Walker, 533 U.S. 167, 180 (2001), and AEDPA, with its goal of “streamlining federal habeas proceedings,” Rhines v. Weber, 544 U. S. 269, 277 (2005).

Burton directs us to two decisions, Stewart v. MartinezVillareal, 523 U. S. 637 (1998), and Slack, supra, in which we have not regarded subsequent petitions to be “second or successive.” But these cases are readily distinguishable. In Martinez-Villareal, we held that the claim of a capital prisoner that he was insane and therefore could not be put to death was necessarily unripe until the State issued a warrant for his execution, and so the prisoner’s subsequent request for consideration of that previously unripe claim was not “second or successive” for purposes of § 2244(b). 523 U. S., at 644-645. But unlike Burton, the prisoner there had attempted to bring this claim in his initial habeas petition, prompting us to look to Lundy in concluding that the claim “should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies,” that is, characterizing it as not “second or successive.” Martinez-Villareal, 523 U. S., at 644. Indeed, we expressly declined to address the situation where a petitioner fails to raise the claim in the initial petition. See id., at 645, n. In this case, Burton did not raise the relevant claims in his 1998 petition. Without more, therefore, our holding in Martinez-Villareal does not support the conclusion that Burton’s 2002 petition was not “second or successive.”

Slack is equally unhelpful to Burton; that decision merely confirmed that when a “first” petition is dismissed because it contains unexhausted claims, a prisoner returning later with a fully exhausted petition would not confront the “second or successive” bar. 529 U. S., at 485-486. We held that a “petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as ‘any other first petition’ and is not a second or successive petition.” Id., at 487 (emphasis added). See also id., at 478 (“[A] habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a ‘second or successive’ petition” (emphasis added)). Burton’s case is quite different — his first petition was not subject to dismissal as containing unexhausted claims, and in fact was adjudicated on the merits.

Moving beyond the ground relied upon by the Ninth Circuit, Burton argues that his 1998 and 2002 petitions challenged different judgments. He notes that his 1998 petition identified the pertinent judgment as the 1994 judgment, App. 34, while the 2002 petition challenged the sentence imposed in the 1998 judgment. The 1998 judgment, however, had been entered nine months before Burton filed his first petition. That judgment, the same one challenged in the subsequent 2002 petition, was the judgment pursuant to which Burton was being detained. Unlike In re Taylor, 171 F. 3d 185 (CA4 1999), cited by Burton, there was no new judgment intervening between the two habeas petitions. In his 1998 petition, Burton specifically described his unexhausted sentencing claims as claims “as to the judgment under attack,” App. 40, belying any notion that those claims arose from a judgment distinct from the one challenged in 1998.

Burton finally contends that had he not filed the 1998 petition when he did, and instead waited until state review of his sentencing claims was complete, he risked losing the opportunity to challenge his conviction in federal court due to AEDPA’s 1-year statute of limitations. See § 2244(d)(1). But this argument misreads AEDPA, which states that the limitations period applicable to “a person in custody pursuant to the judgment of a State court” shall run from, as relevant here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. ” § 2244(d)(1)(A). “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U. S. 211, 212 (1937). Accordingly, Burton’s limitations period did not begin until both his conviction and sentence “became final by the conclusion of direct review or the expiration of the time for seeking such review” — which occurred well after Burton filed his 1998 petition.

Burton argues in rebuttal that this reasoning would necessarily mean the District Court lacked jurisdiction to consider the 1998 petition, but he is mistaken. Section 2254(a) states that a district court “shall entertain” a habeas petition “in behalf of a person in custody pursuant to the judgment of a State court.” When he filed the 1998 petition, Burton assuredly was “in custody pursuant to the judgment of a State court” — even if, at that point, the 1998 judgment was not final for purposes of triggering AEDPA’s statute of limitations.

The long and short of it is that Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a “second or successive” petition challenging his custody, and so the District Court was without jurisdiction to entertain it. The judgment of the Court of Appeals for the Ninth Circuit is therefore vacated, and the case is remanded with instructions to direct the District Court to dismiss the habeas petition for lack of jurisdiction.

It is so ordered.

       As we noted in Blakely v. Washington, 542 U. S. 296, 298, n. 1 (2004), Washington has since amended and recodified its criminal code. Citations are to provisions in effect at the time of Burton’s sentencing.

       Specifically, the standard range sentences for rape, robbery, and burglary, if run concurrently, would have punished Burton as if he had committed .only the rape. State v. Burton, No. 35747-6-I etc., 1997 WL 306429, *11 — *12 (Wash. App., June 9, 1997).

       For the same reasons, Burton’s reliance on Castro v. United States, 540 U. S. 375 (2003), is misplaced. That case reversed a lower court’s recharacterization of a motion requesting a new trial pursuant to Federal Rule of Criminal Procedure 33 as a first habeas petition. Here Burton filed his first habeas petition as such in 1998; it involves no similar “recharacterization” to recognize that the judgment pursuant to which Burton was confined at the time was the same judgment that gave rise to the sentence later challenged in his second habeas petition.


source: Caselaw Access Project

author: Chief Justice Roberts Justice Souter, Justice Ginsburg,

license: Public Domain

text:
    NORFOLK SOUTHERN RAILWAY CO. v. SORRELL
    No. 05-746.
    Argued October 10, 2006
    Decided January 10, 2007

      Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Thomas, Breyer, and Auto, JJ., joined. Souter, J., filed a concurring opinion, in which Scaua and Auto, JJ., joined, post, p. 172. Ginsburg, J., filed an opinion concurring in the judgment, post, p. 177.

      Carter G. Phillips argued the cause for petitioner. With him on the briefs were Stephen B. Kinnaird, Eric A. Shumsky, Laura D. Hunt, James W. Erwin, and David Dick.

      Mary L. Perry argued the cause for respondent. With her on the brief were Jerome J. Schlichter, Roger C. Denton, and Kathleen M. Sullivan

        Daniel Saphire filed a brief for the Association of American Railroads as amicus curiae urging reversal; Frank S. Ravitch and Brent O. Hatch filed a brief for the American Train Dispatchers Association et al. as amici curiae.

   Chief Justice Roberts

delivered the opinion of the Court.

Timothy Sorrell, respondent in this Court, sustained neck and back injuries while working as a trackman for petitioner Norfolk Southern Railway Company. He filed suit in Missouri state court under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§51-60, which makes railroads liable to their employees for injuries “resulting in whole or in part from the negligence” of the railroad, § 51. Contributory negligence is not a bar to recovery under FELA, but damages are reduced “in proportion to the amount of negligence attributable to” the employee, §53. Sorrell was awarded $1.5 million in damages by a jury; Norfolk objects that the jury instructions reflected a more lenient causation standard for railroad negligence than for employee contributory negligence. We conclude that the causation standard under FELA should be the same for both categories of negligence, and accordingly vacate the decision below and remand for further proceedings.

I

On November 1, 1999, while working for Norfolk in Indiana, Sorrell was driving a dump truck loaded with asphalt to be used to repair railroad crossings. While he was driving between crossings on a gravel road alongside the tracks, another Norfolk truck approached, driven by fellow employee Keith Woodin. The two men provided very different accounts of what happened next, but somehow Sorrell’s truck veered off the road and tipped on its side, injuring him. According to Sorrell’s testimony, Woodin forced Sorrell’s truck off the road; according to Woodin, Sorrell drove his truck into a ditch.

On June 18, 2002, Sorrell filed suit against Norfolk in Missouri state court under FELA, alleging that Norfolk failed to provide him with a reasonably safe place to work and that its negligence caused his injuries. Norfolk responded that Sorrell’s own negligence caused the accident.

Missouri purports to apply different standards of causation to railroad and employee contributory negligence in its approved jury instructions for FELA liability. The instructions direct a jury to find an employee contributorily negligent if the employee was negligent and his negligence “directly contributed to cause” the injury, Mo. Approved Jury Instr., Civ., No. 32.07(B), p. 519 (6th ed. 2002), while allowing a finding of railroad negligence if the railroad was negligent and its negligence contributed “in whole or in part” to the injury, id., No. 24.01.

When Sorrell proposed the Missouri approved instruction for employee contributory negligence, Norfolk objected on the ground that it provided a “different” and “much more exacting” standard for causation than that applicable with respect to the railroad’s negligence under the Missouri instructions. App. to Pet. for Cert. 28a-29a. The trial court overruled the objection. App. 9-10. After the jury returned a verdict in favor of Sorrell, Norfolk moved for a new trial, repeating its contention that the different standards were improper because FELA’s comparative fault system requires that the same causation standard apply to both categories of negligence. Id., at 20. The trial court denied the motion. The Missouri Court of Appeals affirmed, rejecting Norfolk’s contention that “the causation standard should be the same as to the plaintiff and the defendant.” App. to Pet. for Cert. 7a, judgt. order reported at 170 S. W. 3d 35 (2005) (per curiam). The court explained that Missouri procedural rules require that where an approved instruction exists, it must be given to the exclusion of other instructions. Ibid.; see Mo. Rule Civ. Proc. 70.02(b) (2006).

After the Missouri Supreme Court denied discretionary review, App. to Pet. for Cert. 31a, Norfolk sought certiorari in this Court, asking whether the Missouri courts erred in determining that “the causation standard for employee contributory negligence under [FELA] differs from the causation standard for railroad negligence.” Pet. for Cert. i. Norfolk stated that Missouri was the only jurisdiction to apply different standards, and that this conflicted with several Federal Court of Appeals decisions insisting on a single standard of causation for both railroad and employee negligence. See, e. g., Page v. St. Louis Southwestern R. Co., 349 F. 2d 820, 823 (CA5 1965) (“[T]he better rule is one of a single standard”); Ganotis v. New York Central R. Co., 342 F. 2d 767, 768-769 (CA6 1965) (per curiam) (“We do not believe that [FELA] intended to make a distinction between proximate cause when considered in connection with the carrier’s negligence and proximate cause when considered in connection with the employee’s contributory negligence”). In response, Sorrell did not dispute that Missouri courts apply “different causation standards ... to plaintiff’s and defendant’s negligence in FELA actions: The defendant is subject to a more relaxed causation standard, but the plaintiff is subject only to the traditional common-law standard.” Brief in Opposition 2. We granted certiorari. 547 U. S. 1127 (2006).

In briefing and argument before this Court, Norfolk has attempted to expand the question presented to encompass what the standard of causation under FELA should be, not simply whether the standard should be the same for railroad negligence and employee contributory negligence. In particular, Norfolk contends that the proximate cause standard reflected in the Missouri instruction for employee contributory negligence should apply to the railroad’s negligence as well.

Sorrell raises both a substantive and procedural objection in response. Substantively, he argues that this Court departed from a proximate cause standard for railroad negligence under FELA in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). There we stated:

“Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.
“[F]or practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.” Id., at 506, 508.

Sorrell argues that these passages from Rogers have been interpreted to mean that a plaintiff’s burden of proof on the question whether the railroad’s negligence caused his injury is less onerous than the proximate cause standard prevailing at common law, citing cases such as Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542-543 (1994); Holbrook v. Norfolk Southern R. Co., 414 F. 3d 739, 741-742 (CA7 2005); Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F. 3d 432, 436 (CA4 1999); and Summers v. Missouri Pacific R. Co., 132 F. 3d 599, 606-607 (CA10 1997).

Norfolk counters that Rogers did not alter the established common-law rule of proximate cause, but rather simply rejected a flawed and unduly stringent version of the rule, the so-called “sole proximate cause” test. According to Norfolk, while most courts of appeals may have read Rogers as Sorrell does, several State Supreme Courts disagree, see, e. g., Chapman v. Union Pacific R. Co., 237 Neb. 617, 626-629, 467 N. W. 2d 388, 395-396 (1991); Marazzato v. Burlington Northern. R. Co., 249 Mont. 487, 490-491, 817 P. 2d 672, 674 (1991), and “there is a deep conflict of authority on precisely that issue.” Reply Brief for Petitioner 20, n. 10.

Sorrell’s procedural objection is that we did not grant certiorari to determine the proper standard of causation for railroad negligence under FELA, but rather to decide whether different standards for railroad and employee negligence were permissible under the Act. What is more, Norfolk is not only enlarging the question presented, but taking a position on that enlarged question that is contrary to the position it litigated below. In the Missouri courts, Norfolk argued that Missouri applies different standards, and that the less rigorous standard applied to railroad negligence should also apply to employee contributory negligence. Thus, Norfolk did not object below on causation grounds to the railroad liability instruction, but only to the employee contributory negligence instruction. App. 9-10. Now Norfolk wants to argue the opposite — that the disparity in the standards should be resolved by applying the more rigorous contributory negligence standard to the railroad’s negligence as well.

We agree with Sorrell that we should stick to the question on which certiorari was sought and granted. We are typically reluctant to permit parties to smuggle additional questions into a case before us after the grant of certiorari. See Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31-34 (1993) (per curiam). Although Norfolk is doubtless correct that we could consider the question of what standard applies as anterior to the question whether the standards may differ, the issue of the substantive content of the causation standard is significant enough that we prefer not to address it when it has not been fully presented. We also agree with Sorrell that it would be unfair at this point to allow Norfolk to switch gears and seek a ruling from us that the standard should be proximate cause across the board.

What Norfolk did argue throughout is that the instructions, when given together, impermissibly created different standards of causation. It chose to present in its petition for certiorari the more limited question whether the courts below erred in applying standards that differ. That is the question on which we granted certiorari and the one we decide today.

II

In response to mounting concern about the number and severity of railroad employees’ injuries, Congress in 1908 enacted FELA to provide a compensation scheme for railroad workplace injuries, pre-empting state tort remedies. Second Employers’ Liability Cases, 223 U. S. 1,53-55 (1912). Unlike a typical workers’ compensation scheme, which provides relief without regard to fault, Section 1 of FELA provides a statutory cause of action sounding in negligence:

“[Ejvery common carrier by railroad .. . shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ....” 45 U.S.C. §51.

FELA provides for concurrent jurisdiction of the state and federal courts, §56, although substantively FELA actions are governed by federal law. Chesapeake & Ohio R. Co. v. Stapleton, 279 U. S. 587, 590 (1929). Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law. Urie v. Thompson, 337 U. S. 163,182 (1949). One notable deviation from the common law is the abolition of the railroad's common-law defenses of assumption of the risk, § 54; Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 58 (1943), and, at issue in this case, contributory negligence, § 53.

At common law, of course, a plaintiff’s contributory negligence operated as an absolute bar to relief. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §65, pp. 461-462 (5th ed. 1984) (hereinafter Prosser & Keeton); 1 D. Dobbs, Law of Torts § 199, p. 494 (2001) (hereinafter Dobbs). Under Section 3 of FELA, however, an employee’s negligence does not bar relief but instead diminishes recovery in proportion to his fault:

“In all actions [under FELA], the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee . . . .” 45 U. S. C. §53.

Both parties agree that at common law the causation standards for negligence and contributory negligence were the same. Brief for Respondent 40-41; Tr. of Oral Arg. 46-48. As explained in the Second Restatement of Torts:

“The rules which determine the causal relation between the plaintiff’s negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant’s negligent conduct and resulting harm to others.” §465(2), p. 510 (1964).

See also Prosser & Keeton § 65, at 456; Dobbs § 199, at 497 (“The same rules of proximate cause that apply on the issue of negligence also apply on the issue of contributory negligence” (footnote omitted)). This was the prevailing view when FELA was enacted in 1908. See 1 T. Shearman & A. Redfield, Law of Negligence § 94, pp. 143-144 (5th ed. 1898) (“The plaintiff’s fault. .. must be a proximate cause, in the same sense in which the defendant’s negligence must have been a proximate cause in order to give any right of action”).

Missouri’s practice of applying different causation standards in FELA actions is apparently unique. Norfolk claims that Missouri is the only jurisdiction to allow such a disparity, and Sorrell has not identified another. It is of course possible that everyone is out of step except Missouri, but we find no basis for concluding that Congress in FELA meant to allow disparate causation standards.

We have explained that “although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis.” Gottskall, 512 U. S., at 544. In Gottskall we “cataloged” the ways in which FELA expressly departed from the common law: It abolished the fellow servant rule, rejected contributory negligence in favor of comparative negligence, prohibited employers from contracting around the Act, and abolished the assumption of risk defense. Norfolk & Western R. Co. v. Ayers, 538 U. S. 135,145 (2003); Gottskall, supra, at 542-543. The fact that the common law applied the same causation standard to defendant and plaintiff negligence, and FELA did not expressly depart from that approach, is strong evidence against Missouri’s disparate standards. See also Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 337-338 (1988) (holding that, because FELA abrogated some common-law rules explicitly but did not address “the equally well-established doctrine barring the recovery of prejudgment interest, ... we are unpersuaded that Congress intended to abrogate that doctrine sub silentio”).

Departing from the common-law practice of applying a single standard of causation for negligence and contributory negligence would have been a peculiar approach for Congress to take in FELA. As one court explained, under FELA,

“[a]s to both attack or defense, there are two common elements, (1) negligence, i. e., the standard of care, and (2) causation, i. e., the relation of the negligence to the injury. So far as negligence is concerned, that standard is the same — ordinary prudence — for both Employee and Railroad alike. Unless a contrary result is imperative, it is, at best, unfortunate if two standards of causation are used.” Page, 349 F. 2d, at 823.

As a practical matter, it is difficult to reduce damages “in proportion” to the employee’s negligence if the relevance of each party’s negligence to the injury is measured by a different standard of causation. Norfolk argues, persuasively we think, that it is far simpler for a jury to conduct the apportionment FELA mandates if the jury compares like with like — apples to apples.

Other courts to address this question concur. See Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F. 3d 1269,1282-1283 (CA3 1995); Caplinger v. Northern Pacific Terminal, 244 Ore. 289, 290-292, 418 P. 2d 34, 35-36 (1966); Page, supra, at 822-823; Ganotis, 342 F. 2d, at 768-769. The most thoughtful treatment comes in Page, in which the Fifth Circuit stated: “[W]e think that from the very nature of comparative negligence, the standard of causation should be single. . . . Use of the terms ‘in proportion to’ and ‘negligence attributable to’ the injured worker inescapably calls for a comparison. . . . [I]t is obvious that for a system of comparative fault to work, the basis of comparison has to be the same.” 349 F. 2d, at 824. See also Restatement (Third) of Torts: Apportionment of Liability § 3, Reporters’ Note, p. 37, Comment a (1999) (“[Comparative responsibility is difficult to administer when different rules govern different parts of the same lawsuit”). We appreciate that there may well be reason to “doubt that such casuistries have any practical significance [for] the jury,” Page, supra, at 823, but it seems to us that Missouri’s idiosyncratic approach of applying different standards of causation unduly muddies what may, to a jury, be already murky waters.

Sorrell argues that FELA does contain an explicit statutory alteration from the common-law rule: Section 1 of FELA — addressing railroad negligence — uses the language “in whole or in part,” 45 U. S. C. § 51, while Section 3 — covering employee contributory negligence — does not, § 53. This, Sorrell contends, evinces an intent to depart from the common-law causation standard with respect to railroad negligence under Section 1, but not with respect to any employee contributory negligence under Section 3.

The inclusion of this language in one section and not the other does not alone justify a departure from the common-law practice of applying a single standard of causation. It would have made little sense to include the “in whole or in part” language in Section 3, because if the employee’s contributory negligence contributed “in whole” to his injury, there would be no recovery against the railroad in the first place. The language made sense in Section 1, however, to make clear that there could be recovery against the railroad even if it were only partially negligent.

Even if the language in Section 1 is understood to address the standard of causation, and not simply to reflect the fact that contributory negligence is no longer a complete bar to recovery, there is no reason to read the statute as a whole to encompass different causation standards. Section 3 simply does not address causation. On the question whether a different standard of causation applies as between the two parties, the statutory text is silent.

Finally, in urging that a higher standard of causation for plaintiff contributory negligence is acceptable, Sorrell invokes FELA’s remedial purpose and our history of liberal construction. We are not persuaded. FELA was indeed enacted to benefit railroad employees, as the express abrogation of such common-law defenses as assumption of risk, the contributory negligence bar, and the fellow servant rule make clear. See Ayers, 538 U. S., at 145. It does not follow, however, that this remedial purpose requires us to interpret every uncertainty in the Act in favor of employees. See Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law”). FELA’s text does not support the proposition that Congress meant to take the unusual step of applying different causation standards in a comparative negligence regime, and the statute’s remedial purpose cannot compensate for the lack of a statutory basis.

We conclude that FELA does not abrogate the common-law approach, and that the same standard of causation applies to railroad negligence under Section 1 as to plaintiff contributory negligence under Section 3. Sorrell does not dispute that Missouri applies different standards, see Brief for Respondent 40-41; see also Mo. Approved Jury Instr., Civ., No. 24.01, Committee’s Comment (1978 new), and accordingly we vacate the judgment below and remand the case for further proceedings.

The question presented in this case is a narrow one, and we see no need to do more than answer that question in today’s decision. As a review of FELA model instructions indicates, n. 2, supra, there are a variety of ways to instruct a jury to apply the same causation standard to railroad negligence and employee contributory negligence. Missouri has the same flexibility as the other States in deciding how to do so, so long as it now joins them in applying a single standard.

Sorrell maintains that even if the instructions improperly contained different causation standards we should nonetheless affirm because any error was harmless. He argues that the evidence of his negligence presented at trial, if credited by the jury, could only have been a “direct” cause, so that even with revised instructions the result would not change. This argument is better addressed by the Missouri Court of Appeals, and we leave it to that court on remand to determine whether a new trial is required in this case.

The judgment of the Missouri Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Souter,

with whom Justice Scalia and Justice Alito join, concurring.

I agree that the same standard of causal connection controls the recognition of both a defendant-employer’s negligence and a plaintiff-employee’s contributory negligence in Federal Employers’ Liability Act (FELA) suits, and I share the Court's caution in remanding for the Missouri Court of Appeals to determine in the first instance just what that common causal relationship must be, if it should turn out that the difference in possible standards would affect judgment on the verdict in this case. The litigation in the Missouri courts did not focus on the issue of what the shared standard should be, and the submissions in this Court did not explore the matter comprehensively.

The briefs and arguments here did, however, adequately address the case of ours with which exploration will begin, and I think it is fair to say a word about the holding in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). Despite some courts’ views to the contrary, Rogers did not address, much less alter, existing law governing the degree of causation necessary for redressing negligence as the cause of negligently inflicted harm; the case merely instructed courts how to proceed when there are multiple cognizable causes of an injury.

Prior to FELA, it was clear common law that a plaintiff had to prove that a defendant’s negligence caused his injury proximately, not indirectly or remotely. See, e. g., 3 J. Lawson, Rights, Remedies, and Practice 1740 (1890) (“Natural, proximate, and legal results are all that damages can be recovered for, even under a statute entitling one ‘to recover any damage’”); T. Cooley, Law of Torts 73 (2d ed. 1888) (same). Defendants were held to the same standard: under the law of that day, a plaintiff’s contributory negligence was an absolute bar to his recovery if, but only if, it was a proximate cause of his harm. See Grand Trunk R. Co. v. Ives, 144 U. S. 408, 429 (1892).

FELA changed some rules but, as we have said more than once, when Congress abrogated common law rules in FELA, it did so expressly. Norfolk & Western R. Co. v. Ayers, 538 U. S. 135, 145 (2003); Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 544 (1994); see also Second Employers’ Liability Cases, 223 U. S. 1, 49-50 (1912) (cataloguing FELA’s departures from the common law). Among FELA’s explicit common law targets, the rule of contributory negligence as a categorical bar to a plaintiff’s recovery was dropped and replaced with a comparative negligence regime. 45 U. S. C. § 53; see Grand Trunk Western R. Co. v. Lindsay, 233 U. S. 42, 49 (1914). FELA said nothing, however, about the familiar proximate-cause standard for claims either of a defendant-employer’s negligence or a plaintiff-employee’s contributory negligence, and throughout the half-century between FELA’s enactment and the decision in Rogers, we consistently recognized and applied proximate cause as the proper standard in FELA suits. See, e. g., Tennant v. Peoria & Pekin Union R. Co., 321 U. S. 29, 32 (1944) (FELA plaintiff must prove that “negligence was the proximate cause in whole or in part” of his injury); see also Urie v. Thompson, 337 U. S. 163, 195 (1949) (recognizing proximate cause as the appropriate standard in FELA suits); St. Louis-San Francisco R. Co. v. Mills, 271 U. S. 344 (1926) (judgment as a matter of law owing to FELA plaintiff’s failure to prove proximate cause).

Rogers left this law where it was. We granted certiorari in Rogers to establish the test for submitting a case to a jury when the evidence would permit a finding that an injury had multiple causes. 352 U. S., at 501, 506. We rejected Missouri’s “language of proximate causation which ma[de] a jury question [about a defendant’s liability] dependent upon whether the jury may find that the defendant’s negligence was the sole, efficient, producing cause of injury.” Id., at 506. The notion that proximate cause must be exclusive proximate cause undermined Congress’s chosen scheme of comparative negligence by effectively reviving the old rule of contributory negligence as barring any relief, and we held that a FELA plaintiff may recover even when the defendant’s action was a partial cause of injury but not the sole one. Recovery under the statute is possible, we said, even when an employer’s contribution to injury was slight in relation to all other legally cognizable causes.

True, I would have to stipulate that clarity was not well served by the statement in Rogers that a case must go to a jury where “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Ibid. But that statement did not address and should not be read as affecting the necessary directness of cognizable causation, as distinct from the occasional multiplicity of causations. It spoke to apportioning liability among parties, each of whom was understood to have had some hand in causing damage directly enough to be what the law traditionally called a proximate cause.

The absence of any intent to water down the common law requirement of proximate cause is evident from the prior eases on which Rogers relied. To begin with, the “any part, even the slightest,” excerpt of the opinion (cited by respondent in arguing that Rogers created a more “relaxed” standard of causation than proximate cause) itself cited Coray v. Southern Pacific Co., 335 U. S. 520 (1949). See Rogers, supra, at 506, n. 11. There, just eight years before Rogers, Justice Black unambiguously recognized proximate cause as the standard applicable in FELA suits. 335 U. S., at 523 (“ [Petitioner was entitled to recover if this defective equipment was the sole or a contributory proximate cause of the decedent employee’s death”). Second, the Rogers Court’s discussion of causation under “safety-appliance statutes” contained a cross-reference to Coray and a citation to Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430 (1949), a case which likewise held there was liability only if “the jury determines that the defendant’s breach is a ‘contributory proximate cause’ of injury,” id., at 435. Rogers, swpra, at 507, n. 13.

If more were needed to confirm the limited scope of what Rogers held, the Court’s quotation of the Missouri trial court’s jury charge in that case would supply it, for the instructions covered the requirement to show proximate cause connecting negligence and harm, a point free of controversy:

“ ‘[I]f you further find that the plaintiff... did not exercise ordinary care for his own safety and was guilty of negligence and that such negligence, if any[,] was the sole proximate cause of his injuries, if any, and that such alleged injuries, if any, were not directly contributed to or caused by any negligence of the defendant. . . then, in that event, the plaintiff is not entitled to recover against the defendant, and you will find your verdict in favor of the defendant.’ ” 352 U. S., at 505, n. 9.

Thus, the trial judge spoke of “proximate cause” by plaintiff’s own negligence, and for defendant’s negligence used the familiar term of art for proximate cause, in referring to a showing that the defendant “directly contributed to or caused” the plaintiff’s injuries. We took no issue with the trial court’s instruction in this respect, but addressed the significance of multiple causations, as explained above.

Whether FELA is properly read today as requiring proof of proximate causation before recognizing negligence is up to the Missouri Court of Appeals to determine in the first instance, if necessary for the resolution of this case on remand. If the state court decides to take on that issue, it will necessarily deal with Rogers, which in my judgment is no authority for anything less than proximate causation in an action under FELA. The state court may likewise need to address post-Rogers cases (including some of our own); I do not mean to suggest any view of them except for the misreading of Rogers expressed here and there.

Justice Ginsburg,

concurring in the judgment.

The Court today holds simply and only that in cases under the Federal Employers’ Liability Act (FELA), railroad negligence and employee contributory negligence are governed by the same causation standard. I concur in that judgment. It should be recalled, however, that the Court has several times stated what a plaintiff must prove to warrant submission of a FELA case to a jury. That question is long settled, we have no cause to reexamine it, and I do not read the Court’s decision to cast a shadow of doubt on the matter.

In Consolidated Rail Corporation v. Gottshall, 512 U. S. 532,543 (1994), we acknowledged that “a relaxed standard of causation applies under FELA.” Decades earlier, in Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164 (1969), we said that a FELA plaintiff need prove “only that his injury resulted in whole or in part from the railroad’s violation.” Id., at 166 (internal quotation marks omitted). Both decisions referred to the Court’s oft-cited opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957), which declared: “Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Id., at 506 (emphasis added). Rogers, in turn, drew upon Coray v. Southern Pacific Co., 335 U. S. 520, 524 (1949), in which the Court observed: “Congress ... imposed extraordinary safety obligations upon railroads and has commanded that if a breach of these obligations contributes in part to an employee’s death, the railroad must pay damages.”

These decisions answer the question Norfolk sought to “smuggle ... into” this case, see ante, at 164 (majority opinion), i. e., what is the proper standard of causation for railroad negligence under FELA. Today’s opinion leaves in place precedent solidly establishing that the causation standard in FELA actions is more “relaxed” than in tort litigation generally.

A few further points bear emphasis. First, it is sometimes said that Rogers eliminated proximate cause in FELA actions. See, e. g., Crane, 395 U. S., at 166 (A FELA plaintiff “is not required to prove common-law proximate causation.”); Summers v. Missouri Pacific R. Co., 132 F. 3d 599, 606 (CA10 1997) (“During the first half of this century, it was customary for courts to analyze liability under . . . FELA in terms of proximate causation. However, the Supreme Court definitively abandoned this approach in Rogers.” (citation omitted)); Oglesby v. Southern Pacific Transp. Co., 6 F. 3d 603, 609 (CA9 1993) (“[Our] holding is consistent with the case law of several other circuits which have found [that] ‘proximate cause’ is not required to establish causation under the FELA.”). It would be more accurate, as I see it, to recognize that Rogers describes the test for proximate causation applicable in FELA suits. That test is whether “employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” 352 U. S., at 506.

Whether a defendant’s negligence is a proximate cause of the plaintiff’s injury entails a judgment, at least in part policy based, as to how far down the chain of consequences a defendant should be held responsible for its wrongdoing. See Palsgraf v. Long Island R. Co., 248 N. Y. 339, 352, 162 N. E. 99, 103 (1928) (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.”)- In FELA cases, strong policy considerations inform the causation calculus.

FELA was prompted by concerns about the welfare of railroad workers. “Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year,” and dissatisfied with the tort remedies available under state common law, “Congress crafted a federal remedy that shifted part of the human overhead of doing business from employees to their employers.” Gottshall, 512 U. S., at 542 (internal quotation marks omitted); see also Wilkerson v. McCarthy, 336 U. S. 53, 68 (1949) (Douglas, J., concurring) (FELA “was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.”). “We have liberally construed FELA to further Congress’ remedial goal.” Gottshall, 512 U. S., at 543. With the motivation for FELA center stage in Rogers, we held that a FELA plaintiff can get to a jury if he can show that his employer’s negligence was even the slightest cause of his injury.

The “slightest” cause sounds far less exacting than “proximate” cause, which may account for the statements in judicial opinions that Rogers dispensed with proximate cause for FELA actions. These statements seem to me reflective of pervasive confusion engendered by the term “proximate cause.” As Prosser and Keeton explains:

“The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins. The word means nothing more than near or immediate; and when it was first taken up by the courts it had connotations of proximity in time and space which have long since disappeared. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason ‘legal cause’ or perhaps even ‘responsible cause’ would be a more appropriate term.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §42, p. 273 (5th ed. 1984) (footnotes omitted).

If we take up Prosser and Keeton’s suggestion to substitute “legal cause” for “proximate cause,” we can state more clearly what Rogers held: Whenever a railroad’s negligence is the slightest cause of the plaintiff’s injury, it is a legal cause, for which the railroad is properly held responsible.

If the term “proximate cause” is confounding to jurists, it is even more bewildering to jurors. Nothing in today’s opinion should encourage courts to use “proximate cause,” or any term like it, in jury instructions. “[Ljegal concepts such as ‘proximate cause’ and ‘foreseeability’ are best left to arguments between attorneys for consideration by judges or justices; they are not terms which are properly submitted to a lay jury, and when submitted can only serve to confuse jurors and distract them from deciding cases based on their merits.” Busta v. Columbus Hospital Corp., 276 Mont. 342, 371, 916 P. 2d 122, 139 (1996). Accord Mitchell v. Gonzales, 54 Cal. 3d 1041, 1050, 819 P. 2d 872, 877 (1991) (“It is reasonably likely that when jurors hear the term ‘proximate cause’ they may misunderstand its meaning.”).

Sound jury instructions in FELA cases would resemble the model federal charges cited in the Court’s opinion. Ante, at 167-168, n. 2. As to railroad negligence, the relevant instruction tells the jury:

“The fourth element [of a FELA action] is whether an injury to the plaintiff resulted in whole or in part from the negligence of the railroad or its employees or agents. In other words, did such negligence play any part, even the slightest, in bringing about an injury to the plaintiff?” 5 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions — Civil ¶ 89.02, p. 89-44 (3d ed. 2006).

Regarding contributory negligence, the relevant instruction reads:

“To determine whether the plaintiff was ‘contributorily negligent/ you . . . apply the same rule of causation, that is, did the plaintiff’s negligence, if any, play any part in bringing about his injuries.” Id., ¶ 89.03, p. 89-53.

Both instructions direct jurors in plain terms that they can be expected to understand.

Finally, as the Court notes, ante, at 172, on remand, the Missouri Court of Appeals will determine whether a new trial is required in this ease, owing to the failure of the trial judge properly to align the charges on negligence and contributory negligence. The trial court instructed the jury to find Norfolk liable if the railroad’s negligence “resulted in whole or in part in injury to plaintiff.” App. 14. In contrast, the court told the jury to find Sorrell eontributorily negligent only if he engaged in negligent conduct that “directly contributed to cause his injury.” Id., at 15 (emphasis added). At trial, Norfolk sought a different contributory negligence instruction. Its proposed charge would have informed the jury that Sorrell could be held responsible, at least in part, if his own negligence “contributed in whole or in part to cause his injury.” Id., at 11.

Norfolk’s proposal was superior to the contributory negligence instruction in fact delivered by the trial court, for the railroad’s phrasing did not use the word “directly.” As Sorrell points out, however, the instructional error was almost certainly harmless. Norfolk alleged that Sorrell drove his truck negligently, causing it to flip on its side. Under the facts of this case, it is difficult to imagine that a jury could find Sorrell negligent in a manner that contributed to his injury, but only indirectly.

Norfolk urged in this Court, belatedly and unsuccessfully, that the charge on negligence was erroneous and should have been revised to conform to the charge in fact delivered on contributory negligence. See ante, at 163. That argument cannot be reconciled with our precedent. See supra, at 177-178. Even if it could, it would be unavailing in the circumstances here presented. Again, there is little likelihood that a jury could find that Norfolk’s negligence contributed to Sorrell’s injury, but only indirectly.

* * *

With the above-described qualifications, I concur in the Court’s judgment.

       Missouri in the past directed a jury to find a railroad liable if the railroad’s negligence “directly resulted in whole or in part in injury to plaintiff.” Mo. Approved Jury Instr., Civ., No. 24.01 (1964). This language persisted until 1978, when the instruction was modified to its present version. Ibid. (2d ed. 1969, Supp. 1980). The commentary explains that the word “direct” was excised because, under FELA, “the traditional doctrine of proximate (direct) cause is not applicable.” Id., No. 24.01, p. 187 (Committee’s Comment (1978 new)). Cf. Leake v. Burlington Northern R. Co., 892 S. W. 2d 359, 364-365 (Mo. App. 1995). The contributory negligence instruction, on the other hand, has remained unchanged. Mo. Approved Jury Instr., Civ., No. 32.07(B) (6th ed. 2002).

       A review of model and pattern jury instructions in FELA actions reveals a variety of approaches. Some jurisdictions recommend using the “in whole or in part” or “in any part” formulation for both railroad negligence and plaintiff contributory negligence, by using the same language in the respective pattern instructions, including a third instruction that the same causation standard is applied to both parties, or including in commentary an admonition to that effect. See, e. g., 5 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instr. — Civil ¶¶ 89.02-89.03, pp. 89-7, 89-44, 89-53 (3d ed. 2006); 4 Fla. Forms of Jury Instr. §§ 161.02, 161.47, 161.60 (2006); Cal. Jury Instr., Civ., Nos. 11.07, 11.14, and Comment (2005); 3 111. Forms of Jury Instr. §§91.02[1], 91.50[1] (2005); 3 N. M. Rules Ann., Uniform Jury Instr., Civ., Nos. 13-905,13-909, 13-915 (2004); Model Utah Jury Instr., Civ., Nos. 14.4, 14.7, 14.8 (1993); Manual of Model Civil Jury Instr. for the District Courts of the Eighth Circuit § 7.03, and n. 7 (2005); Eleventh Circuit Pattern Jury Instr. (Civil Cases) § 7.1 (2005). Other jurisdictions use the statutory formulation (“in whole or in part”) for railroad negligence, and do not contain a pattern instruction for contributory negligence. See, e.g., Mich. Non-Standard Jury Instr., Civ., § 12:53 (Supp. 2006 ). Both Alabama and Virginia use formulations containing language of both proximate cause and in whole or in part. 1 Ala. Pattern Jury Instr., Civ., Nos. 17.01, 17.05 (2d ed. 1993) (railroad negligence “proximately caused, in whole or in part”; plaintiff contributory negligence “proximately contributed to cause”); 1 Va. Jury Instr. §§ 40.01,40.02 (3d ed. 1998) (railroad negligence “in whole or in part was the proximate cause of or proximately contributed to cause”; plaintiff negligence “contributed to cause”). In New York, the pattern instructions provide that railroad causation is measured by whether the injury results “in whole or in part” from the railroad’s negligence, and a plaintiff’s contributory negligence diminishes recovery if it “contributed to caus[e]” the injury. IB N. Y. Pattern Jury Instr., Civ., No. 2:180 (3d ed. 2006). Montana provides only a general FELA causation instruction. Mont. Pattern Instr., Civ., No. 6.05 (1997) (“[A]n act or a failure to act is the cause of an injury if it plays a part, no matter how small, in bringing about the injury”). Kansas has codified instructions similar to Missouri’s, Kan. Pattern Instr. 3d, Civ., No. 132.01 (2005) (railroad liable when injury “results in whole or in part” from railroad’s negligence); id,., No. 132.20 (contributory negligence is negligence on the part of the plaintiff that “contributes as a direct cause” of the injury), but the commentary to these instructions cites cases and instructions applying a single standard, id., No. 132.01, and Comment, and in practice the Kansas courts have used the language of in whole or in part for both parties’ negligence, see Merando v. Atchison, T. & S. F. R. Co., 232 Kan. 404, 406-409, 656 P. 2d 154, 157-158 (1982).

       See also Bunting v. Sun Co., Inc., 434 Pa. Super. 404, 409-411, 643 A. 2d 1085,1088 (1994); Hickox v. Seaboard System R. Co., 183 Ga. App. 330, 331-332, 358 S. E. 2d 889, 891-892 (1987). An exception is a Texas ease that no court has since cited for the proposition, Missouri-Kansas-Texas R. Co. v. Shelton, 383 S. W. 2d 842, 844-846 (Civ. App. 1964), and that the Texas model jury instructions, which instruct the jury to determine plaintiff or railroad negligence using a single “in whole or in part” causation standard, at least implicitly disavow. See 10 West’s Texas Forms: Civil Trial and Appellate Practice §23.34, p. 27 (3d ed. 2000) (“Did the negligence, if any, of the [plaintiff or railroad] cause, in whole or in part, the occurrence in question?”).

       Recently, some courts have taken the view that Rogers smuggled proximate cause out of the concept of defendant liability under FELA. See, e. g., Holbrook v. Norfolk Southern R. Co., 414 F. 3d 739, 741-742 (CA7 2005) (concluding that “a plaintiff’s burden when suing under the FELA is significantly lighter than in an ordinary negligence case” because “a railroad will be held liable where ‘employer negligence played any part, even the slightest, in producing the injury’ ” (quoting Rogers, 352 U. S., at 506)); Summers v. Missouri Pacific R. Co., 132 F. 3d 599, 606-607 (CA10 1997) (holding that, in Rogers, the Supreme Court “definitively abandoned” the requirement of proximate cause in FELA suits); Oglesby v. Southern Pacific Transp. Co., 6 F. 3d 603, 606-609 (CA9 1993) (same). But several State Supreme Courts have explicitly or implicitly espoused the opposite view. See Marazzato v. Burlington No. R. Co., 249 Mont. 487, 490-491, 817 P. 2d 672, 674-675 (1991) (Rogers addressed multiple causation only, leaving FELA plaintiffs with “the burden of proving that defendant’s negligence was the proximate cause in whole or in part of plaintiff’s [death]” (alteration in original)); see also Gardner v. CSX Transp., Inc., 201 W. Va. 490,500, 498 S. E. 2d 473, 483 (1997) (“[T]o prevail on a claim under [FELA], a plaintiff employee must establish that the defendant employer acted negligently and that such negligence contributed proximately, in whole or in part, to plaintiff’s injury”); Snipes v. Chicago Central & Pacific R. Co., 484 N. W. 2d 162, 164 (Iowa 1992) (“Recovery under the FELA requires an injured employee to prove that the defendant employer was negligent and that the negligence proximately caused, in whole or in part, the accident”); Chapman v. Union Pacific R. Co., 237 Neb. 617, 627, 467 N. W. 2d 388, 395 (1991) (“To recover under [FELA], an employee must prove the employer’s negligence and that the alleged negligence is a proximate cause of the employee’s injury”).

       I do not read Justice Souter’s concurring opinion as taking a position on the appropriate causation standard as expressed in Consolidated Rail Corporation v. Gottshall, 512 U. S. 532 (1994), and Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164 (1969). See supra, at 177-178.

       See also Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences, 54 Vand. L. Rev. 941, 987 (2001) (“[T]he inadequacy and vagueness of jury instructions on ‘proximate cause’ is notorious.”); Cork, A Better Orientation for Jury Instructions, 54 Mercer L. Rev. 1, 53-54 (2002) (criticizing Georgia's jury instruction on proximate cause as incomprehensible); Steele & Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N. C. L. Rev. 77 (1988) (demonstrating juror confusion about proximate-cause instructions).

       Norfolk’s proposed instruction was, nevertheless, imperfect. As the Court notes, if the employee’s negligence “contributed ‘in whole’ to his injury, there would be no recovery against the railroad in the first place.” Ante, at 170.


author: Justice Breyer Justice Stevens,

text:
    GONZALES, ATTORNEY GENERAL v. DUENAS-ALVAREZ
    No. 05-1629.
    Argued December 5, 2006
    Decided January 17, 2007

      Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, Ginsburg, and Auto, JJ., joined, and in which Stevens, J., joined, as to Parts I, II, and III-B. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 198.

      Dan Himmelfarb argued the cause for petitioner. With him on the briefs were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, and Donald E. Keener.

      Christopher J. Meade argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging affirmance were filed for the California Public Defenders Association by Jeremy Maltby; and for the National Immigration Project of the National Lawyers Guild by Charles A Rothfeld, Andrew J. Pincus, and Giovanna Shay.

        Meir Feder and Samuel Estreicher filed a brief for Professors of Criminal Law as amici curiae.

   Justice Breyer

delivered the opinion of the Court.

Immigration law provides for removal from the United States of an alien convicted of “a theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year.” 8 U. S. C. § 1101(a)(43)(G) (emphasis added; footnote omitted); § 1227(a)(2)(A). The question here is whether the term “theft offense” in this federal statute includes the crime of “aiding and abetting” a theft offense. We hold that it does. And we vacate a Ninth Circuit determination to the contrary.

I

The Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. (2000 ed. and Supp. IV), lists a set of offenses, conviction for any one of which subjects certain aliens to removal from the United States, § 1227(a). In determining whether a conviction (say, a conviction for violating a state criminal law that forbids the taking of property without permission) falls within the scope of a listed offense (e. g., “theft offense”), the lower courts uniformly have applied the approach this Court set forth in Taylor v. United States, 495 U. S. 575 (1990). E. g., Soliman v. Gonzales, 419 F. 3d 276, 284 (CA4 2005); Abimbola v. Ashcroft, 378 F. 3d 173, 176-177 (CA2 2004); Huerta-Guevara v. Ashcroft, 321 F. 3d 883, 886-888 (CA9 2003); Hernandez-Mancilla v. INS, 246 F. 3d 1002, 1008-1009 (CA7 2001).

Taylor concerned offenses listed in the federal Armed Career Criminal Act, 18 U. S. C. § 924(e) (2000 ed. and Supp. IV). That Act mandates a lengthy prison sentence for offenders with previous convictions for, e. g., a “violent felony”; and the Act sets forth certain specific crimes, e. g., “burglary,” included in this category. The Court, in Taylor, considered whether a conviction for violating a state statute criminalizing certain burglary-like behavior fell within the listed federal term “burglary.” 495 U. S., at 589, 598.

The Court held that Congress meant its listed term “burglary” to refer to a specific crime, i. e., “ ‘burglary’ ” in “the generic sense in which the term is now used in the criminal codes of most States.” Id., at 598 (emphasis added). The Court also held that a state conviction qualifies as a burglary conviction, “regardless of” the “exact [state] definition or label” as long as it has the “basic elements” of “generic” burglary, namely, “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599. The Court added that, when a sentencing court seeks to determine whether a particular prior conviction was for a generic burglary offense, it should normally look not to the facts of the particular prior case, but rather to the state statute defining the crime of conviction. Id., at 599-600.

The Court further noted that a “few States’ burglary statutes” “define burglary more broadly” to include both a (generically defined) listed crime and also one or more nonlisted crimes. Id., at 599. For example, Massachusetts defines “burglary” as including not only breaking into “ ‘a building’ ” but also breaking into a “vehicle” (which falls outside the generic definition of “burglary,” for a car is not a “ ‘building or structure’ ”). See Shepard v. United States, 544 U. S. 13, 16, 17 (2005); see also Taylor, 495 U. S., at 599 (discussing Missouri burglary statutes). In such cases the Court’s “categorical approach” permits the sentencing court “to go beyond the mere fact of conviction” in order to determine whether the earlier “jury was actually required to find all the elements of generic burglary.” Id., at 602; see also Conteh v. Gonzales, 461 F. 3d 45, 54 (CA1 2006) (observing that some courts refer to this step of the Taylor inquiry as a “modified categorical approach”). “For example,” the sentencing court might examine “the indictment or information and jury instructions” in the earlier case. 495 U. S., at 602. In Shepard, we added that, in a nonjury case, the sentencing court might examine not only the “charging document” but also “the terms of a plea agreement,” the “transcript of colloquy between judge and defendant,” or “some comparable judicial record” of information about the “factual basis for the plea.” 544 U. S., at 26.

II

The case before us concerns the application of the framework just set forth to Luis Dueñas-Alvarez, the respondent here, a permanent resident alien of the United States. In 2002, Duenas-Alvarez was convicted of violating Cal. Veh. Code Ann. § 10851(a) (West 2000). That section states:

“Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense.” (Emphasis added.)

After Duenas-Alvarez was convicted, the Federal Government, claiming that the conviction was for a generic theft offense, began removal proceedings. A Federal Immigration Judge, agreeing with the Government that the California offense is “a theft offense ... for which the term of imprisonment [is] at least one year,” found Duenas-Alvarez removable. 8 U. S. C. § 1101(a)(43)(G) (footnote omitted); § 1227(a)(2)(A). The Board of Immigration Appeals (BIA) affirmed. Duenas-Alvarez sought review of the BIA’s decision in the Court of Appeals for the Ninth Circuit.

While respondent’s petition for court review was pending, the Ninth Circuit, in Penuliar v. Ashcroft, 395 F. 3d 1037 (2005), held that the relevant California Vehicle Code provision, § 1.0851(a), sweeps more broadly than generic theft. See id., at 1044-1045. In particular, the court said that generic theft has as an element the taking or control of others’ property. But, the court added, the California statutory phrase “‘[who] is a party or an accessory ... or an accomplice’” would permit conviction “for aiding and abetting a theft.” Id., at 1044 (emphasis deleted). And the court believed that one might “aid” or “abet” a theft without taking or controlling property. Id., at 1044-1045 (citing Martinez-Perez v. Ashcroft, 393 F. 3d 1018 (CA9 2004), withdrawn and amended, 417 F. 3d 1022 (2005)). Hence, in the Court of Appeals’ view, the provision must cover some generically defined “theft” crimes and also some other crimes (aiding and abetting crimes) that, because they are not generically defined “theft” crimes, fall outside the scope of the term “theft” in the immigration statute. 395 F. 3d, at 1044-1045.

The Ninth Circuit subsequently heard Duenas-Alvarez’s petition for review and summarily remanded the case to the agency for further proceedings in light of Penuliar. 176 Fed. Appx. 820 (2006). We granted the Government’s petition for certiorari in order to consider the legal validity of the Ninth Circuit’s holding set forth in Penuliar and applied here, namely, the holding that “aiding and abetting” a theft is not itself a crime that falls within the generic definition of theft. We conclude that the Ninth Circuit erred.

III

The Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Penuliar v. Gonzales, 435 F. 3d 961, 969 (2006) (internal quotation marks omitted). See Abimbola, 378 F. 3d, at 176 (analyzing the BIA’s definition and citing cases from three other Circuits, including the Ninth Circuit, approving that definition). The question before us is whether one who aids or abets a theft falls, like a principal, within the scope of this generic definition. We conclude that he does.

The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. See Standefer v. United States, 447 U. S. 10, 15 (1980). In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories. Id., at 16-19; Nye & Nissen v. United States, 336 U. S. 613, 618 (1949).

Indeed, every jurisdiction — all States and the Federal Government — has “expressly abrogated the distinction” among principals and aiders and abettors who fall into the second and third categories. 2 W. LaFave, Substantive Criminal Law § 13.1(e), p. 333 (2d ed. 2003) (LaFave). The Solicitor General has presented us with a comprehensive account of the law of all States and federal jurisdictions as well. And we have verified that these jurisdictions treat similarly principals and aiders and abettors who fall into the second or third common-law category. See Appendix A, infra. Since criminal law now uniformly treats those who fall into the first three categories alike, “the generic sense in which” the term “theft” “is now used in the criminal codes of most States,” Taylor, 495 U. S., at 598, covers such “aiders and abettors” as well as principals. And the criminal activities of these aiders and abettors of a generic theft must themselves fall within the scope of the term “theft” in the federal statute.

A

Duenas-Alvarez does not defend the Ninth Circuit’s position. He agrees with the Government that generically speaking the law treats aiders and abettors during and before the crime the same way it treats principals; and that the immigration statute must then treat them similarly as well. Instead, Duenas-Alvarez argues that the California Vehicle Code provision in other ways reaches beyond generic theft to cover certain nongeneric crimes.

Duenas-Alvarez points out that California defines “aiding and abetting” such that an aider and abettor is criminally responsible not only for the crime he intends, but also for any crime that “naturally and probably” results from his intended crime. People v. Durham, 70 Cal. 2d 171, 181, 449 P. 2d 198, 204 (1969) (“‘aider and abettor . . . liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged’ ” (quoting People v. Villa, 156 Cal. App. 2d 128, 134 (1957); emphasis deleted)). This fact alone does not show that the statute covers a non-generic theft crime, for relatively few jurisdictions (only 10 in Dueñas-Alvarez’s own view) have expressly rejected the “natural and probable consequences” doctrine. See Brief for Respondent 21-22; Appendix B, infra. Moreover, many States and the Federal Government apply some form or variation of that doctrine, or permit jury inferences of intent in circumstances similar to those in which California has applied the doctrine, as explained below. See Appendix C, infra. To succeed, Duenas-Alvarez must show something special about California’s version of the doctrine — for example, that California in applying it criminalizes conduct that most other States would not consider “theft.”

Duenas-Alvarez attempts to make just such a showing. In particular, he says that California’s doctrine, unlike that of most other States, makes a defendant criminally liable for conduct that the defendant did not intend, not even as a known or almost certain byproduct of the defendant’s intentional acts. See 1 LaFave § 5.2(a), at 341 (person intends that which he knows “is practically certain to follow from his conduct”). At oral argument, Duenas-Alvarez’s counsel suggested that California’s doctrine, for example, might hold an individual who wrongly bought liquor for an underage drinker criminally responsible for that young drinker’s later (unforeseen) reckless driving. See Tr. of Oral Arg. 44. And Duenas-Alvarez refers to several California cases in order to prove his point. See Brief for Respondent 19.

We have reviewed those cases, however, and we cannot agree that they show that California’s law is somehow special. In the first case, People v. Nguyen, 21 Cal. App. 4th 518, 26 Cal. Rptr. 2d 323 (1993), the Third Appellate District in California upheld the jury conviction of individuals who had aided several robberies at houses of prostitution, for aiding and abetting a sexual assault used by one of the individuals to convince a proprietor, by frightening her, to give up property. Id., at 528, 533-534, 26 Cal. Rptr. 2d, at 329, 333. The court, in upholding the verdict, wrote that “knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime.” Id., at 530, 26 Cal. Rptr. 2d, at 330 (emphasis added). The court added that “[wjhile the defendants participated in the criminal endeavor the foreseeability of sexual assault went from possible or likely to certain, yet defendants continued to lend their aid and assistance to the endeavor.” Id., at 534, 26 Cal. Rptr. 2d, at 333 (emphasis added). The court said that the jury could find that the defendants’

“continuing participation in the criminal endeavor aided the perpetrators by providing the control and security they needed to tarry long enough to commit the sexual offense, by helping to convince the victim that resistance would be useless, and by dissuading the victim’s employee from any notion she may have formed of going to the victim’s assistance.”

And the court concluded:

“Under these circumstances it will not do for defendants to assert that they were concerned only with robbery and bear no responsibility for the sexual assault.” Id., at 533-534, 26 Cal. Rptr. 2d, at 333.

People v. Simpson, 66 Cal. App. 2d 319 (1944), affirmed a kidnaping and robbery conviction on an aiding and abetting theory. Id., at 322. Although the defendant argued to the appeals court that she and her compatriots had not planned to kidnap the robbery victim, the record showed that she had brought the gun used to intimidate the victim while he was tied up and placed in a car, in which she and her co-robbers rode with the victim to another location while they robbed him. Id., at 322-323. As in Nguyen, the court, noting that kidnaping was the means by which the robbery was committed, found that the defendant had the requisite “motive,” or intent to commit the kidnaping. 66 Cal. App. 2d, at 326.

People v. Montes, 74 Cal. App. 4th 1050, 88 Cal. Rptr. 2d 482 (1999), affirmed an attempted murder conviction where a confederate of the defendant shot the victim after the defendant committed armed assault, simple assault, and breach of the peace. Id., at 1055, 88 Cal. Rptr. 2d, at 485. The court found that the conduct for which the appellant was charged with assault and breach of the peace was a “confrontation ... punctuated by threats and weaponry” “in the context of an ongoing rivalry between . . . two gangs [that] acted violently toward each other.” Ibid. The court reasoned that the escalating violence, resulting in someone being shot, was a foreseeable consequence of the defendant’s intended act of participating in the gang confrontation. Ibid.

Although the court in Montes applied a more expansive concept of “motive” or “intent” than did the courts in Nguyen and Simpson, we cannot say that those concepts as used in any of these cases extend significantly beyond the concept as set forth in the cases of other States. See Appendix C, infra.

Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Because Duenas-Alvarez makes no such showing here, we cannot find that California’s statute, through the California courts’ application of a “natural and probable consequences” doctrine, creates a subspecies of the Vehicle Code section crime that falls outside the generic definition of “theft.”

B

Duenas-Alvarez makes two additional claims. First, he argues that § 10851 holds liable accessories after the fact; and to prove that an individual was an accessory after the fact does not require the Government to show that the individual committed a theft. Second, Duenas-Alvarez argues that § 10851 applies, not only to auto theft, but also to joyriding, which he argues involves so limited a deprivation of the use of a car that it falls outside the generic “theft” definition. See Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303, 146 N. E. 432 (1925) (Cardozo, J.) (citing cases for proposition that a very temporary use is not theft).

We shall not consider these claims. The question that we agreed to decide is whether “ Theft offense’ ” in the federal statute “includes aiding and abetting the commission of the offense.” See Brief for Petitioner I. Context makes clear that “aiding and abetting” in this question referred to the use of that term in Penuliar, i. e., to the second and third common-law categories (principal in the second degree, accessory before the fact), see supra, at 189, see also Brief for Petitioner 13, and not to “accessory after the fact.” Thus neither this claim nor the “joyriding” claim falls within the terms of the question presented. Regardless, the lower court did not consider the claims, and we decline to reach them in the first instance. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 469-470 (1999); Roberts v. Galen of Va., Inc., 525 U. S. 249, 253-254 (1999) (per curiam); United States v. Bestfoods, 524 U. S. 51, 72-73 (1998).

For these reasons we vacate the Ninth Circuit’s judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.

APPENDIXES TO OPINION OF THE COURT

A

Ala. Code §§13A-2-20, 13A-2-23 (2006); Alaska Stat. §§ 11.16.100,11.16.110 (2004); Ariz. Rev. Stat. Ann. §§ 13-301, 13-302, 13-303(A) (West 2001); Ark. Code Ann. §§5-2-402, 5-2-403(a) (2006); Colo. Rev. Stat. Ann. §§18-1-601, 18-1-603 (2006); Conn. Gen. Stat. §53a-8(a) (2005); Del. Code Ann., Tit. 11, §271 (1995); D. C. Code §22-1805 (2001); Fla. Stat. §777.011 (2006); Ga. Code Ann. §16-2-20 (2003); Haw. Rev. Stat. §§702-221, 702-222 (1993); Idaho Code § 19-1430 (Lexis 2004); 111. Comp. Stat., ch. 720, §§5/5-1, 5/5-2 (West 2004); Ind. Code §35-41-2-4 (West 2004); Iowa Code §703.1 (2005); Kan. Stat. Ann. §21-3205(1) (1995); Ky. Rev. Stat. Ann. §502.020(1) (West 2006); La. Stat. Ann. §14:24 (West 1997); Me. Rev. Stat. Ann., Tit. 17-A, §57(1) (2006); Md. Grim. Proc. Code Ann. §4-204(b) (Lexis Supp. 2006); Mass. Gen. Laws, ch. 274, §2 (West 2004); Mich. Comp. Laws Ann. §767.39 (West 2000); Minn. Stat. § 609.05, subd. 1 (2004); Miss. Code Ann. §97-1-3 (2006); Mo. Rev. Stat. §§562.036, 562.041(1) (2000); Mont. Code Ann. §§45-2-301, 45-2-302 (2005); Neb. Rev. Stat. §28-206 (1995); Nev. Rev. Stat. §195.020 (2003); N. H. Rev. Stat. Ann. §626:8 (Supp. 2006); N. J. Stat. Ann. § 2C:2-6 (West 2005); N. M. Stat. Ann. §30-1-13 (2004); N. Y. Penal Law Ann. §20.00 (West 2004); N. C. Gen. Stat. Ann. §14-5.2 (Lexis 2005); N. D. Cent. Code Ann. §12.1-03-01(1) (Lexis 1997); Ohio Rev. Code Ann. §§ 2923.03(A), (F) (Lexis 2006); Okla. Stat., Tit. 21, § 172 (West 2001); Ore. Rev. Stat. §§ 161.150,161.155 (2003); 18 Pa. Cons. Stat. §306 (2002); R. I. Gen. Laws § 11-1-3 (2002); S. C. Code Ann. §16-1-40 (2003); S. D. Codified Laws §§22-3-3, 22-3-3.1 (1998); Tenn. Code Ann. §§39-ll-401(a), 39-11-402 (2006); Tex. Penal Code Ann. §§7.01, 7.02(a) (West 2003); Utah Code Ann. §76-2-202 (Lexis 2003); Vt. Stat. Ann., Tit. 13, §§3-4 (1998); Va. Code Ann. §18.2-18 (Lexis 2004); Wash. Rev. Code §9A.08.020 (2006); W. Va. Code Ann. §61-11-6 (Lexis 2005); Wis. Stat. §939.05 (2003-2004); Wyo. Stat. Ann. §6-1-201 (2005).

B

Alaska Stat. § 11.16.110; Riley v. State, 60 P. 3d 204, 214, 219-221 (Alaska App. 2002); Tarnef v. State, 512 P. 2d 923, 928 (Alaska 1973); State v. Phillips, 202 Ariz. 427, 435-437, 46 P. 3d 1048, 1056-1058 (2002); State v. Wall, 212 Ariz. 1, 4-5, 126 P. 3d 148, 151-152 (2006); Colo. Rev. Stat. Ann. § 18-1-603; Bogdanov v. People, 941 P. 2d 247, 250-252, and n. 8, as amended by 955 P. 2d 997 (Colo. 1997), disapproved of on other grounds by Griego v. People, 19 P. 3d 1, 7-8 (Colo. 2001); Wilson-Bey v. United States, 903 A. 2d 818, 821-822 (D. C. 2006); Kitt v. United States, 904 A. 2d 348, 354-356 (D. C. 2006); Commonwealth v. Richards, 363 Mass. 299, 305-308, 293 N. E. 2d 854, 859-860 (1973); Commonwealth v. Daughtry, 417 Mass. 136, 137-140, 627 N. E. 2d 928, 930-931 (1994) ; Mont. Code Ann. §45-2-302; State ex rel. Keyes v. Montana 13th Jud. Dist. Ct., 288 Mont; 27, 32-35, 955 P. 2d 639, 642-643 (1998); Sharma v. State, 118 Nev. 648, 653-657, 56 P. 3d 868, 871-873 (2002) (per curiam); cf. Bolden v. State, 121 Nev. 908, 921-922, 124 P. 3d 191, 200 (2005); State v. Carrasco, 1997-NMSC-047, ¶¶ 5-13, 946 P. 2d 1075, 1079-1080; State v. Bacon, 163 Vt. 279, 286-292, 658 A. 2d 54, 60-63 (1995) ; State v. Pitts, 174 Vt. 21, 23-27, 800 A. 2d 481, 483-485 (2002).

C

See, e.g., 2 LaFave § 13.3(b), at 361-362, nn. 27-29 (2d ed. 2003 and Supp. 2007) (identifying cases applying the doctrine in California, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Tennessee, and Wisconsin, as well as in other States where the continued viability of the doctrine is unclear); State v. Medeiros, 599 A. 2d 723, 726 (R. I. 1991) (aider and abettor intends natural and probable consequences of his acts). See also Beasley v. State, 360 So. 2d 1275, 1278 (Fla. App. 1978); Ga. Code Ann. § 16-2-20; Jack son v. State, 278 Ga. 235, 235-237, 599 S. E. 2d 129, 131-132 (2004) ; Jordan v. State, 272 Ga. 395, 395-397, 530 S. E. 2d 192, 193-194 (2000); Crawford v. State, 210 Ga. App. 36, 36-37,435 S. E. 2d 64, 65 (1993); State v. Ehrmantrout, 100 Idaho 202, 595 P. 2d 1097 (1979) (per curiam); State v. Meyers, 95-750, pp. 5-7 (La. App. 11/26/96), 683 So. 2d 1378, 1382; State v. Holmes, 388 So. 2d 722, 725-727 (La. 1980); People v. Robinson, 475 Mich. 1, 8-9, 715 N. W. 2d 44, 49 (2006); Welch v. State, 566 So. 2d 680, 684-685 (Miss. 1990); State v. Roberts, 709 S. W. 2d 857, 863, and n. 6 (Mo. 1986); State v. Ferguson, 20 S. W. 3d 485, 497 (Mo. 2000); State v. Logan, 645 S. W. 2d 60, 64-65 (Mo. App. 1982); State v. Leonor, 263 Neb. 86, 95-97, 638 N. W. 2d 798, 807 (2002); N. J. Stat. Ann. §2C:2-6; State v. Torres, 183 N. J. 554, 566-567, 874 A. 2d 1084, 1092 (2005) ; State v. Weeks, 107 N. J. 396, 401-406, 526 A. 2d 1077, 1080-1082 (1987); Ohio Rev. Code Ann. §2923.03; State v. Johnson, 93 Ohio St. 3d 240, 242-246, 754 N. E. 2d 796, 799-801 (2001); State v. Herring, 94 Ohio St. 3d 246, 248-251, 762 N. E. 2d 940, 947-948 (2002); Ore. Rev. Stat. §161.155; State v. Pine, 336 Ore. 194, 203-205, 206-208, and n. 6, 82 P. 3d 130, 135, 137, and n. 6 (2003); State v. Anlauf, 164 Ore. App. 672, 674-677, and n. 1, 995 P. 2d 547, 548-549, and n. l (2000); Hudgins v. Moore, 337 S. C. 333, 339, n. 5, 524 S. E. 2d 105, 108, n. 5 (1999); S. D. Codified Laws §22-3-3; State v. Tofani, 2006 SD 63, ¶¶ 31-48, 719 N. W. 2d 391, 400-405; State v. Richmond, 90 S. W. 3d 648, 654-656 (Tenn. 2002); Tex. Penal Code Ann. § 7.02; Ex parte Thompson, 179 S. W. 3d 549, 552 (Tex. Crim. App. 2005); Gordon v. State, 640 S. W. 2d 743, 758 (Tex. App. 1982); Utah Code Ann. §76-2-202; State v. Alvarez, 872 P. 2d 450, 461 (Utah 1994); State v. Crick, 675 P. 2d 527, 534 (Utah 1983); State v. Rodoussakis, 204 W. Va. 58, 77, 511 S. E. 2d 469, 488 (1998); Jahnke v. State, 692 P. 2d 911, 921-922 (Wyo. 1984); Fales v. State, 908 P. 2d 404, 408 (Wyo. 1995); United States v. Edwards, 303 F. 3d 606, 637 (CA5 2002), cert. denied, 537 U. S. 1192 (2003); United States v. Walker, 99 F. 3d 439, 443 (CADC 1996); United States v. Miller, 22 F. 3d 1075,1078-1079 (CA11 1994); United States v. Moore, 936 F. 2d 1508, 1527 (CA7), cert. denied, 502 U. S. 991 (1991); United States v. Graewe, 774 F. 2d 106, 108, n. 1 (CA6 1985), cert. denied, 474 U. S. 1068 and 1069 (1986); United States v. Barnett, 667 F. 2d 835, 841 (CA9 1982); United States v. DeLaMotte, 434 F. 2d 289, 293 (CA2 1970), cert. denied, 401 U. S. 921 (1971).

Justice Stevens,

concurring in part and dissenting in part.

While I join Parts I, II, and III-B of the Court’s opinion, as well as its judgment, I do not join Part III-A. I am not prepared to disagree with anything said in Part III-A, but I believe we would be well advised to withhold comment on issues of California law until after they have been addressed by the Court of Appeals in the first instance. Limiting our decision to the question we granted certiorari to answer, though not a rigid rule, is generally prudent. Doing so seems particularly wise whenever reaching beyond the question presented requires analysis of disputed issues of state law. Because circuit judges are generally more familiar with the law of the States within their respective jurisdictions than we are, we have often followed the sound practice of deferring to the courts of appeals on such matters even when we did not necessarily share their views. See, e.g., Haring v. Prosise, 462 U. S. 306, 314 (1983); Bishop v. Wood, 426 U. S. 341, 345-346, and n. 10 (1976) (collecting cases); see also Elk Grove Unified School Dish v. Newdow, 542 U. S. 1, 16 (2004). I would adhere to that settled practice in this case.