source: Caselaw Access Project

author: Mr. Justice Marshall

license: Public Domain

text:
    MILLER, DIRECTOR, DEPARTMENT OF CHILDREN AND FAMILY SERVICES OF ILLINOIS, et al. v. YOUAKIM et al.
    No. 77-742.
    Argued October 30, 1978
    Decided February 22, 1979

      Marshall, J., delivered the opinion of the Court, in which all other Members joined except Stevens, J., who took no part in the consideration or decision of the case.

      Paul J. Bargiel, Assistant Attorney General of Illinois, argued the cause for appellants. With him on the briefs were William J. Scott, Attorney General, and Imelda R. Terrazino, Assistant Attorney General.

      Robert E. Lehrer argued the cause for appellees. With him on the brief were Patrick A. Keenan, Robert P. Bums, and James D. Weill.

      Briefs of amici curiae urging affirmance were filed by Solicitor General McCree for the United States; and by Michael B. Trister and Marian Wright Edelman for the American Orthopsychiatric Assn, et al.

   Mr. Justice Marshall

delivered the opinion of the Court.

At issue in this appeal is whether Illinois may exclude from its Aid to Families with Dependent Children-Foster Care program children who reside with relatives.

The Aid to Families with Dependent Children-Foster Care program (AFDC-FC) authorizes federal financial subsidies for the care and support of children removed from their homes and made wards of the State pursuant to a judicial determination that the children’s homes were not conducive to their welfare. §§408 (a)(1), (2) of the Social Security Act of 1935 (Act), as amended, 42 U. S. C. §§ 608 (a)(1), (2). To qualify for Foster Care assistance, these children must be placed in a “foster family home or child-care institution.” §408 (a) (3), 42 U. S. C. § 608 (a)(3). The basic AFDC program, already in existence when the Foster Care program was enacted in 1961, provides aid to eligible children who live with a parent or with a relative specified in § 406 (a) of the Act. In administering these programs, Illinois distinguishes between related and unrelated foster parents. Children placed in unrelated foster homes may participate in the AFDC-FC program. But those who are placed in the homes of relatives listed in § 406 (a), and who are entitled to basic AFDC benefits, cannot receive AFDC-FC assistance because the State defines the term “foster family home” as a facility for children unrelated to the operator. Foster children living with relatives may participate only in Illinois’ basic AFDC program, which provides lower monthly payments than the Foster Care program. The specific question presented here is whether Illinois has correctly interpreted the federal standards for AFDC-FC eligibility set forth in § 408 (a) of the Act to exclude children who, because of placement with related rather than unrelated foster parents, qualify for assistance under the basic AFDC program.

I

Appellees are four foster children, their older sister (Linda Youakim), and her husband (Marcel Youakim). In 1969, Illinois removed the children from their mother’s home and made them wards of the State following a judicial determination of neglect. The Department of Children and Family-Services (Department), which became responsible for the children, placed them in unrelated foster care facilities until 1972. During this period, they each received full AFDC-FC benefits of $105 a month. In 1972, the Department decided to place two of the children with the Youakims, who were under no legal obligation to accept or support them. The Department investigated the Youakim home and approved it as meeting the licensing standards established for unrelated foster family homes, as required by state law. Despite this approval, the State refused to make Foster Care payments on behalf of the children because they were related to Linda Youakim.

The exclusion of foster children living with related caretakers from Illinois’ AFDC-FC program reflects the State’s view that the home of a relative covered under basic AFDC is not a “foster family home” within the meaning of § 408 (a)(3), the federal AFDC-FC eligibility provision at issue here. Interpreting that provision, Illinois defines a “foster family home” as

“a facility for child care in residences of families who receive no more than 8 children unrelated to them . . . for the purpose of providing family care and training for the children on a full-time basis. . . .” Ill. Ann. Stat., ch. 23, §2212.17 (Supp. 1978) (emphasis added).

Homes that do not meet the definition may not be licensed, and under state law, only licensed facilities are entitled to Foster Care payments.

Although Illinois refused to make Foster Care payments, it did provide each child basic AFDC benefits of approximately $63 a month, substantially less than the applicable $105 AFDC-FC rate. The Youakims, however, believed that these payments were insufficient to provide proper support, and declined to accept the other two children. These children remain in unrelated foster care facilities and continue to receive AFDC-FC benefits.

In 1973, the Youakims and the four foster children brought a class action under 42 U. S. C. § 1983 for themselves and persons similarly situated, challenging Illinois’ distinction between related and unrelated foster parents as violative of the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court certified the class, but granted summary judgment for the state officials on the constitutional claim. 374 F. Supp. 1204 (ND Ill. 1974).

While the direct appeal from the summary judgment was pending in this Court, the Department of Health, Education, and Welfare (HEW) issued a formal interpretation of the scope of the federal AFDC-FC program, providing in pertinent part:

“When a child has been removed from his home by judicial determination and is placed in foster care under the various conditions specified in Section 408 of the Social Security Act and 45 CFR 233.110, the foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative.” HEW Program Instruction APA-PI-75-9 (Oct. 25, 1974).

In light of this administrative interpretation, we vacated the judgment and directed the District Court to consider whether the Illinois foster care scheme is inconsistent with the Social Security Act and therefore invalid under the Supremacy Clause, U. S. Const., Art. VI, cl. 2. Youakim v. Miller, 425 U. S. 231 (1976) (per curiam).

On remand, the District Court granted summary judgment for appellees, holding that the State’s denial of AFDC-FC benefits and services to otherwise eligible foster children who live with relatives conflicts with §§401 and 408 of the Social Security Act. 431 F. Supp. 40, 45 (ND Ill. 1976). It found that under the “plain words” of § 408, dependent children adjudged to be wards of the State, removed from their homes, and placed in approved foster homes are entitled to AFDC-FC benefits, regardless of whether their foster parent is a relative. 431 F. Supp., at 44-45. In so ruling, the court relied on HEW’s interpretive ruling and on the national policy embodied in § 401 of the Act to “encourag[e] the care of dependent children in their own homes or in the homes of relatives.” 431 F. Supp., at 44. Since the State had approved the Youakim home as meeting the licensing standards for unrelated foster homes, the District Court concluded that the requirements of § 408 had been satisfied. 431 F. Supp., at 43-44.

The Court of Appeals unanimously affirmed the judgment of the District Court. 562 F. 2d 483 (CA7 1977). It held that the statutory definition of “foster family home” in the last sentence of § 408 does not exclude relatives’ homes, and found no “implied legislative intent” to create such an exclusion. 562 F. 2d, at 487; see id., at 486 n. 4. Accordingly, the Court of Appeals concluded that any home approved as meeting the State’s licensing standards is a “foster family home” within the meaning of § 408. 562 F. 2d, at 486, 490.

We noted probable jurisdiction, 434 U. S. 1060 (1978), and now affirm.

II

A participating State may not deny assistance to persons who meet eligibility standards defined in the Social Security Act unless Congress clearly has indicated that the standards are permissive. See, e. g., Burns v. Alcala, 420 U. S. 575, 580 (1975); Carleson v. Remillard, 406 U. S. 598 (1972) ; Townsend v. Swank, 404 U. S. 282, 286 (1971); King v. Smith, 392 U. S. 309 (1968). Congress has specified that programs, like AFDC-FC, which employ the term “dependent child” to define eligibility must be available for “all eligible individuals.” §402 (a) (10), 42 U. S. C. § 602 (a) (10) ; see Quern v. Mandley, 436 U. S. 725, 740-743, and n. 18 (1978). Section 408 (e) reinforces this general rule by requiring States to provide Foster Care benefits to “any” child who satisfies the federal eligibility criteria of § 408 (a). Thus, if foster care in related homes is encompassed within § 408, Illinois may not deny AFDC-FC benefits when it places an eligible child in the care of a relative.

In arguing that related foster care does not fall within § 408’s definition of “foster family home,” appellants submit that Congress enacted the Foster Care program solely for the benefit of children not otherwise eligible for categorical assistance. We disagree. The purpose of the AFDC-FC program was not simply to duplicate the AFDC program for a different class of beneficiaries. As the language and legislative history of § 408 demonstrate, the Foster Care program was designed to meet the particular needs of all eligible neglected children, whether they are placed with related or unrelated foster parents.

A

Section 408 (a), in defining “dependent child,” establishes four conditions of AFDC-FC eligibility. First, the child must have been removed from the home of a parent or other relative specified in § 406 (a), the basic AFDC eligibility provision, “as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child.” § 408 (a) (1), 42 U. S. C. § 608 (a) (1). Second, the State must remain responsible for the placement and care of the child. § 408 (a) (2), 42 U. S. C. § 608 (a) (2). Third, the child must be placed in "a foster family home or child-care institution.” § 408 (a) (3), 42 U. S. C. § 608 (a) (3). Fourth, the child must have been eligible for categorical assistance under the State’s plan prior to initiation of the removal proceedings. § 408 (a)(4), 42 U. S. C. § 608 (a)(4).

The dispute in this case centers on the meaning of “foster family home” as used in the third eligibility requirement, § 408 (a)(3) of the Act. The statute itself defines this phrase in sweeping language:

“[T]he term ‘foster family home’ means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing homes of this type, as meeting the standards established for such licensing.” § 408, 42 U. S. C. § 608 (last sentence).

Congress manifestly did not limit the term to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves as meeting its licensing standards falls within the ambit of this definitional provision. That Congress intended no distinction between related and unrelated foster homes is further demonstrated by the AFDC-FC definition of “aid to families with dependent children,” which includes foster care for eligible children who live “in the foster family home of any individual.” §408 (b)(1), 42 U. S. C. §608 (b)(1) (emphasis added). Far from excluding related caretakers, the statute uses the broadest possible language when it refers to the homes of foster parents.

Appellants concede that these provisions do not explicitly bar from the Foster Care program children living with related foster parents. Juris. Statement 11; Brief for Appellants 22; Reply Brief for Appellants 5; 562 F. 2d, at 486, and n. 4. Nevertheless, they infer from two isolated passages of § 408 a congressional intent to except relatives’ homes from the definition of “foster family home.”

Appellants first rely on the definition of dependent children in §§408 (a)(1) and (3). These provisions state in relevant part:

“(a) the term ‘dependent child’ shall, notwithstanding section [406 (a) — the basic AFDC eligibility provision], also include a child (1) who would meet the requirements of such section [406 (a) ] except for his removal. . . from the home of a relative (specified in such section [406 (a)]) as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child . . . , [and] (3) who has been placed in a foster family home.” (Emphasis added.)

Appellants construe the “notwithstanding” language of § 408 (a)(1) in conjunction with §408 (a) (3) as creating a class of AFDC-FC beneficiaries distinct from the dependent children covered under basic AFDC. In their view, “notwithstanding § 406 (a)” means that the Foster Care definition of “dependent child” both suspends the basic AFDC requirement that the child reside with a parent or close relative, and precludes a foster child who meets that requirement from participating in the AFDC-FC program. Under appellants’ construction, §§ 408 (a) (1) and (3) would read: For the purpose of Foster Care aid, a “dependent child” shall only include a child who would meet the requirements of § 406 (a) except that he has been both removed from the home of a parent or relative specified in § 406 (a) and placed in a nonrelative’s home.

The difficulty with this strained interpretation is that § 408 (a)(1) does not use the word “only.” It states that a dependent child shall “also” include a child removed from the home of a parent or relative. Thus, there is no basis for construing language that unquestionably expands the scope of the term “dependent child” as implicitly contracting the definition to exclude a child who meets the eligibility criteria of § 406 (a). Because §408 (a)(1) does not have the preclusive meaning urged by appellants, it cannot implicitly modify the phrase “foster family home” in § 408 (a) (3) to denote solely unrelated homes. We think it clear that neither § 408 (a)(1) nor § 408 (a) (3) embodies a congressional intent to constrict the broad statutory definition of “foster family home.”

Appellants next maintain that interpreting AFDC-FC to encompass foster care by relatives would render meaningless another provision of the program. Section 408 (f)(1) of the Act obligates States to ensure that

“services are provided which are designed to improve the conditions in the home from which [the foster child] was removed or to otherwise make possible his being placed in the home of a relative specified in section [406 (a) ].” 42 U. S. C. § 608 (f)(1) (emphasis added).

According to appellants, if related homes were “foster family homes,” it would be unnecessary to réquire States to- make the home of a relative suitable for placement when the foster child already lives in a relative’s home.

By ignoring the critical word “or,” appellants misconstrue the import of this provision. To be sure, § 408 (f) expresses a preference for the return of children to their original home or their transfer to the care of a relative. Congress, however, expressed this preference in the alternative. When a child is placed in related foster care, the State obviously can satisfy §408 (f)(1) by working toward his ultimate return to the home from which he was removed, in this case the mother’s home. Thus, §408 (f)(1) is fully consonant with including in the AFDC-FC program foster children placed with relatives.

Had Congress intended to exclude related foster parents from the definition of “foster family home,” it presumably would have done so explicitly, just as it restricted the definition of “child-care institution.” Instead, the statute plainly states that a foster family home is the home of any individual licensed or approved by the State as meeting its licensing requirements, and we are unpersuaded that the provisions on which appellants rely implicitly limit that expansive definition.

B

The legislative history and structure of the Act fortify our conclusion that the language of § 408 should be given its full scope. The Foster Care program was enacted in the aftermath of HEW's declaration that States could no longer discontinue basic AFDC assistance due to unsuitable home conditions “while the child continues to reside in the home.” State Letter No. 452, Bureau of Public Assistance, Social Security Administration, Department of Health, Education, and Welfare (Jan. 17, 1961) (hereinafter Flemming Ruling). In directing States “either to improve the home conditions” or “make arrangements for the child elsewhere,” ibid., the Ruling prompted Congress to encourage state protection of neglected children. Accordingly, Congress designed a program carefully tailored to the needs of children whose “home environments . . . are clearly contrary to the [ir] best interests,” and it offered the States financial subsidies to implement the plan. Neither the legislative history nor the structure of the Act indicates that Congress intended to differentiate among neglected children based on their relationship to their foster parents. Indeed, such a distinction would conflict in several respects with the overriding goal of providing the best available care for all dependent children removed from their homes because they were neglected. See S. Rep. No. 165, p. 6; 107 Cong. Rec. 6388 (1961) (remarks of Sen. Byrd).

Although a fundamental purpose of the Foster Care program was to facilitate removal of children from their homes, Congress also took steps to “safeguard” intact family units from unnecessary upheaval. See S. Rep. No. 165, p. 7; 107 Cong. Rec. 6388 (1961) (remarks of Sen. Byrd). To ensure that children would be removed only from homes demonstrably inimical to their welfare, Congress required participating States to obtain “a judicial determination . . . that continuation in the home was contrary to the welfare of the child.” S. Rep. No. 165, p. 7; see 108 Cong. Rec. 12693 (1962) (remarks of Sen. Eugene McCarthy); § 408 (a)(1). Protecting the integrity of established family units by mandating judicial approval of a State’s decision to remove a child obviously is a goal that embraces all neglected children, regardless of who the ultimate caretaker may be. Yet under appellants’ construction of § 408, the State would have no obligation to justify its removal of a dependent child if he were placed with relatives, since the child could not be eligible for Foster Care benefits. But the same child, placed in unrelated facilities, would be entitled under the Foster Care program to a judicial determination of neglect. The rights of allegedly abused children and their guardians would thus depend on the happenstance of where they are placed, which is normally determined after a court has found removal necessary. We are reluctant to attribute such an anomalous intent to Congress, particularly in the absence of any indication that it meant to protect from unnecessary removal only those dependent children placed with strangers.

Congress was also concerned with assuring that States place neglected children in substitute homes determined appropriate for foster care. See S. Rep. No. 165, pp. 6-7. To deter indiscriminate foster placements, Congress required that States establish licensing standards for every foster home, § 408 (definition of “foster family home”), and supervise the placement of foster children. § 408 (a) (2); see 45 CFR §§ 220.19 (a), 233.110 (a)(2)(i) (1977). The legislative materials at no point suggest that Congress intended to subject some foster homes, but not others, to minimum standards of quality, as could result if § 408 excluded relatives’ homes from the definition of “foster family home.” Indeed, in authorizing an approval procedure as an alternative to actual licensing of “foster family homes,” Congress evinced its understanding that children placed in related foster homes are entitled to Foster Care benefits. At the time the AFDC-FC program was enacted in 1961, many States exempted relatives’ homes from the licensing requirements imposed on all other types of settings in which foster children could be placed. It is therefore likely that Congress, by including an approval procedure, meant to encompass foster homes not subject to State licensing requirements, in particular, related foster homes.

The specific services offered by the AFDC-FC program further indicate that Congress did not intend to distinguish between related and unrelated foster caretakers. Congress attached considerable significance to the unique needs and special problems of abused children who are removed from their homes by court order, distinguishing them as a class from other dependent children:

“The conditions which make it necessary to remove [neglected] children from unsuitable homes often result in needs for special psychiatric and medical care of the children. . . .
“These are the most underprivileged children and often have special problems. . . .” 108 Cong. Fee. 12692-12693 (1962) (remarks of Sen. Eugene McCarthy).

Section 408 embodies Congress’ recognition of the peculiar status of neglected children in requiring that States continually supervise the care of these children, §408 (a)(2), develop a plan tailored to the needs of each foster child “to assure that he receives proper care,” §408 (f)(1), and periodically review both the necessity of retaining the child in foster care and the appropriateness of the care being provided. See ibid.; 45 CFR §§ 220.19 (b), (c), 233.110 (a)(2) (ii) (1977). Additionally, the States must work to improve the conditions in the foster child’s original home or to transfer him to a relative when feasible, §408 (f)(1); see supra, at 137. This procedure comports with Congress’ preference for care of dependent children by relatives, a policy underlying the categorical assistance program since its inception in 1935. See S. Rep. No. 628, 74th Cong., 1st Sess., 16-17 (1935); H. R. Rep. No. 615, 74th Cong., 1st Sess., 10-12 (1935); Burns v. Alcala, 420 U. S., at 581-582; §401, as amended, 42 U. S. C. § 601, supra, at 132-133. We do not believe that Congress, when it extended assistance to foster children, meant to depart from this fundamental principle. Congress envisioned a remedial environment to correct the enduring effects of past neglect and abuse. There is nothing to indicate that it intended to discriminate between potential beneficiaries, equally in need of the program, on the basis of their relationship to their foster parents.

That Congress had no such intent is also evidenced by the 1967 amendments to the Act, which increased the federal matching payments for AFDC-FC to exceed the federal share of basic AFDC payments. The increase reflects Congress’ recognition that state-supervised care and programs designed to meet the special needs of neglected children cost more than basic AFDC care. The legislative history of the amendment reveals no basis for distinguishing between related and unrelated foster homes. Rather, it discloses a generalized concern for the plight of all dependent children who should be sheltered from their current home environments but are forced to remain in such homes because of the States’ inability to finance substitute care. S. Rep. No. 744, pp. 163-165; H. R. Rep. No. 544, pp. 100-101. Significantly, the Committee Reports suggest that increasing federal matching payments would encourage relatives “not legally responsible for support” to undertake the care of foster children “in order to obtain the best possible environment for the child.” S. Rep. No. 744, p. 164; H. R. Rep. No. 544, p. 101. The amendments are therefore described, without qualification, as providing “more favorable Federal matching ... for foster care for children removed from an unsuitable home by court order.” S. Rep. No. 744, p. 4; H. R. Rep. No. 544, p. 4.

C

Our interpretation of the statute and its legislative history is buttressed by HEW Program Instruction APA-PI-75-9, which requires States to provide AFDC-FC benefits “regardless of whether the . . . foster family home in which a child is placed is operated by a relative.” In reaching this conclusion, the Department of Health, Education, and Welfare reasoned:

“A non-legally liable relative has no financial responsibility towards the child placed with him and the income and resources of such a relative are not factors in determining entitlement to a foster care payment. It must be noted, too, that the 1967 amendments to the Social Security Act liberalized Federal financial participation in the cost of foster care, recognizing foster family care is more costly than care in the child’s own home.” HEW Program Instruction APA-PI-75-9.

We noted in vacating the original three-judge District Court decision in this case that “[t]he interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute.” Youakim v. Miller, 425 U. S., at 235-236, citing New York Dept. of Social Services v. Dublino, 413 U. S. 405, 421 (1973) ; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 121 (1973); Investment Co. Institute v. Camp, 401 U. S. 617, 626-627 (1971). Administrative interpretations are especially persuasive where, as here, the agency participated in developing the provision. Adams v. United States, 319 U. S. 312, 314-315 (1943); United States v. American Trucking Assns., 310 U. S. 534, 549 (1940). HEW’s Program Instruction is fully supported by the statute, its legislative history, and the common-sense observation that all dependent foster children are similarly in need of the protections and monetary benefits afforded by the AFDC-FC program.

III

We think it clear that Congress designed the AFDC-FC program to include foster children placed with relatives. The overriding purpose of § 408 was to assure that the most appropriate substitute care be given to those dependent children so mistreated that a court has ordered them removed from their homes. The need for additional AFDC-FC resources — both monetary and service related — to provide a proper remedial environment for such foster children arises from the status of the child as a subject of prior neglect, not from the status of the foster parent. Appellants attribute to Congress an intent to differentiate among children who are equally neglected and abused, based on a living arrangement bearing no relationship to the special needs that the AFDC-FC program was created to meet. Absent clear support in the statutory language or legislative history, we decline to make such an unreasonable attribution.

Accordingly, we hold that the AFDC-FC program encompasses foster children who, pursuant to a judicial determination of neglect, have been placed in related homes that meet a State’s licensing requirements for foster homes.

The judgment below is

Affirmed.

MR. Justice Stevens took no part in the consideration or decision of this case.

       Section 408 of the Act, 42 U. S. C. § 608, sets forth the provisions governing the Foster Care program:
      “Payment to States for foster home care of dependent children; definitions
      “Effective for the period beginning May 1, 1961—
      “(a) the term ‘dependent child’ shall, notwithstanding section 606 (a) of this title, also include a child (1) who would meet the requirements of such section 606 (a) or of section 607 of this title except for his removal after April 30, 1961, from the home of a relative (specified in such section 606 (a)) as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child, (2) whose placement and care are the responsibility of (A) the State or local agency administering the State plan approved under section 602 of this title . . . , (3) who has been placed in a foster family home or childcare institution as a result of such determination, and (4) who (A) received aid under such State plan in or for the month in which court proceedings leading to such determination were initiated, or (B) (i) would have received such aid in or for such month if application had been made therefor, or (ii) in the case of a child who had been living with a relative specified in section 606 (a) of this title within 6 months prior to the month in which such proceedings were initiated, would have received such aid in or for such month if in such month he had been living with (and removed from the home of) such a relative and application had been made therefor;
      “(b) the term ‘aid to families with dependent children’ shall, notwithstanding section 606 (b) of this title, include also foster care in behalf of a child described in paragraph (a) of this section—
      “(1) in the foster family home of any individual, whether the payment therefor is made to such individual or to a public or nonprofit private child-placement or child-care agency, or
      “(2) in a child-care institution, whether the payment therefor is made to such institution or to a public or nonprofit private child-placement or child-care agency ....
      “(c) the number of individuals counted under clause (A) of section 603 (a) (1) of this title for any month shall include individuals . . . with respect to whom expenditures were made in such month ....
      “but only with respect to a State whose State plan approved under section 602 of this title—
      “(e) includes aid for any child described in paragraph (a) of this section, and
      “(f) includes provision for (1) development of a plan for each such child (including periodic review of the necessity for the child’s being in a foster family home or child-care institution) to assure that he receives proper care and that services are provided which are designed to improve the conditions in the home from which he was removed or to otherwise make possible his being placed in the home of a relative specified in section 606 (a) of this title ....
      “For purposes of this section, the term ‘foster family home’ means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing homes of this type, as meeting the standards established for such licensing; and the term ‘child-care institution’ means a nonprofit private child-care institution which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing or approval of institutions of this type, as meeting the standards established for such licensing.”

       The eligibility requirements of the AFDC-FC program are contained in the statutory definition of “dependent child,” § 408 (a). See n. 1, supra.

       The eligibility criteria for the basic AFDC program are set forth in its statutory definition of “dependent child,” § 406 (a) of the Act, 42 U. S. C. § 606 (a):
      “When used in this part—
      “(a) The term 'dependent' child’ means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father,, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.”

       Ill. Ann. Stat., ch. 23, §2212.17 (Supp. 1978). See infra, at 130-131.

       Illinois, like most other States, has consistently authorized substantially greater AFDC-FC payments than basic AFDC benefits. See 25 Soc. Sec. Bull., No. 2, Tables 10, 14, pp. 28, 30 (Feb. 1962); U. S. Dept. of HEW, Public Assistance Statistics: April 1977, Tables A, B, 4, 6, 7 (Sept. 1977) : infra, at 130, 131.

       See Ill. Rev. Stat., ch. 37, § 705-7 (1) (f) (1975); Ill. Ann. Stat, ch. 23, § 5005 (Supp. 1978), as amended, Pub. Act 80-1124, 1977 Ill. Laws 3367; Pub. Act 80-1364, Ill. Legis. Serv. 713 (West 1978).

       See Ill. Ann. Stat., ch. 23, § 10-2 (Supp. 1978).

       Ch. 23, §§ 4-1.2 and 2217 (Supp. 1978); Illinois Department of Children and Family Services, Child Welfare Manual 2.8.2 (1976) (hereinafter DCFS Welfare Manual). The DCFS Welfare Manual recently has been revised to conform to the decisions below.
      The Agency documented its approval in two “Relative Home Placement Agreements” which were identical, both in form and in obligations imposed, to those used for unrelated foster care placements, except that the term “foster” was sometimes crossed out, two references were made to the familial relationship among appellees, and the usual promise of AFDC-FC benefits was deleted. See 431 F. Supp. 40, 43-44, and nn. 4, 5 (ND Ill. 1976); App. 20-23.

       Similarly, the phrase “facility for child care/’ which is used to define “foster family home,” includes
      “any person, group of persons, agency, association or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility . . . .” Ill. Ann. Stat., ch. 23, § 2212.05 (Supp. 1978) (emphasis added).

       See §§2213-2215; DCFS Welfare Manual 2.8.2.

       See Ill. Ann. Stat., ch. 23, § 5005 (Supp. 1978).

       As an exception to this benefit differential, the State has authorized special supplemental payments, upon an adequate showing of need by related foster parents, to bring basic AFDC related foster care assistance up to $105 per month. Brief for Appellants 5; 374 F. Supp. 1204, 1206 (ND Ill. 1974). Since September 1, 1974, the Youakims have received these need-based payments for their foster children. This Court previously held that receipt of the supplemental benefits does not render the case moot. Youakim v. Miller, 425 U. S. 231, 236 n. 2 (1976) (per curiam).

       The District Court had pendent jurisdiction under 28 U. S. C. § 1343 (3) to consider this statutory issue. See Youakim v. Miller, supra, at 236; Hagans v. Lavine, 415 U. S. 528 (1974).

       It appears that every other court to consider the issue has also concluded that dependent children who have been removed from their homes by judicial order and placed by a State in relatives’ homes are entitled to AFDC-FC benefits. See Jones v. Davis, Civ. No. 76-805 (Ore., Apr. 8, 1977), appeal docketed, CA9, No. 77-2254; Alston v. Department of Health and Social Services, [1974-1976 Transfer Binder] CCH Poverty L. Rep. ¶ 22,336 (Wis. Cir. Ct., Jan. 21, 1976); Thompson v. Department of Health and Social Services, [1974M976 Transfer Binder] CCH Poverty L. Rep. ¶ 22,303 (Wis. Cir. Ct., Jan. 9, 1976); Taylor v. Dumpson, 79 Misc. 2d 379, 362 N. Y. S. 2d 888 (Sup. Ct. 1974), vacated as moot, 37 N. Y. 2d 765, 337 N. E. 2d 600 (1975); Clampett v. Madigan, [1972-1974 Transfer Binder] CCH Poverty L. Rep. ¶ 17,979 (SD, May 24, 1973); Jackson v. Ohio Dept. of Public Welfare, Civ. No. C72-182 (ND Ohio, Apr. 17, 1972); Sockwell v. Maloney, 431 F. Supp. 1006, 1008, and n. 3 (Conn. 1976) (dicta), aff’d, 554 F. 2d 1236 (CA2 1977) (per curiam).

       In contrast to the broad definition of “foster family home/’ the term “child-care institution” is explicitly qualified to exempt private institutions operated for profit and public institutions. § 408, 42 U. S. C. § 608 (last sentence).

       See S. Rep. No. 165, 87th Cong., 1st Sess., 6-7 (1961) (hereinafter S. Rep. No. 165); S. Rep. No. 1589, 87th Cong., 2d Sess., 12-13 (1962) ; Hearings on the Public Assistance Act of 1962 before the Senate Committee on Finance, 87th Cong., 2d Sess., 65 (1962) (memorandum from HEW Secretary Ribicoff to Sen. Byrd); Hearings on the Public Welfare Amendments of 1962 before the House Committee on Ways and Means, 87th Cong., 2d Sess., 294-297, 305-307 (1962).

       S. Rep. No. 165, pp. 6-7.

       This precaution reflected Congress’ awareness of the events that had culminated in the Flemming Ruling. In the years preceding the Ruling, there was considerable concern that States were using suitability rules intrusively to impose various moral and social standards on parents of dependent children. See King v. Smith, 392 U. S. 309, 321-327 (1968). For example, by threatening to discontinue basic AFDC aid or to initiate neglect proceedings, States had coerced many welfare mothers into “voluntarily” placing their children with relatives, although a court might not have ordered removal had formal proceedings been initiated. See ibid.; W. Bell, Aid to Dependent Children 124-136 (1965).

       § 408, 42 U. S. C. § 608 (last sentence).

       Colo. Rev. Stat. §§22-12-2, 22-12-3 (1953); Fla. Stat. §409.05 (1961); Idaho Code §§39-1201, 39-1202 (1961); IE. Rev. Stat., ch. 23, §§ 2304, 2310, 2314 (1961); Iowa Code Ann. §§ 2372, 237.3, 237.8 (1949) ; Md. Ann. Code, Art. 88A, §§20, 21 (1957); Mo. Ann. Stat. §210.211 (1952 and Supp. 1961); Mont. Rev. Codes Ann. §§ 10-520, 10-521 (1957); N. H. Rev. Stat. Ann. §§ 170:1-170:3 (1964); Pa. Stat. Ann., Tit. 11, §§ 801, 802 (Purdon 1939 and Supp. 1964); R. I. Gen. Laws §§ 40-14r-2, 40-14-11 (1956); Vt. Stat. Ann., Tit. 33, §§ 501, 502 (1959); Wis. Stat. §48.62 (1957).

       Despite the broad language of §408 and the clear legislative goals behind the AFDC-FC program, appellants maintain that as a policy matter, relatives’ homes should not constitute “foster family homes.” They contend that permitting AFDC-FC assistance for foster children who live with relatives would create a “financial incentive” for relatives to refrain from caring for needy children until the children are removed from their homes by court order. Brief for Appellants 26. Even if this were true, “issue [s] of legislative policy . . . [are] better addressed to the wisdom of Congress than to the judgment of this Court.” Marquette Nat. Bank v. First of Omaha Service Corp., 439 U. S. 299, 319 (1978). Furthermore, we view the inclusion of related foster homes in § 408 as fully consistent with Congress' determination that homes of parents and relatives provide the most suitable environment for children. Congress evidently believed that encouraging relatives to care for these “most underprivileged children,” 108 Cong. Rec. 12693 (1962) (remarks of Sen. Eugene McCarthy), whatever the cost, was worth the price. Indeed, if the State’s interpretation of the statute were correct, relatives would have an incentive to refuse to accept foster children altogether. Concerned relatives might subordinate their interests in supervising the well-being of youngsters they love to ensure that these children receive the greater cash benefits and services available only to foster children placed in unrelated homes. Similarly, the availability of significantly more financial assistance under AFDC-FC might motivate child-placement authorities to refrain from placing foster children with relatives even when these homes are best suited to the needs of the child.

       Social Security Amendments of 1967, Pub. L. 90-248, §205 (b), 81 Stat. 892, § 403 (a) (1) (B) of the Social Security Act, as amended, 42 U. S. C. § 603 (a) (1) (B); see S. Rep. No. 744, 90th Cong., 1st Sess., 286 (1967) (hereinafter S. Rep. No. 744). These amendments also require all States that participate in the basic AFDC program to establish a Foster Care program. 81 Stat. 892, adding § 402 (a) (20) of the Act, 42 U. S. C. §602 (a) (20).

       See S. Rep. No. 744, pp. 163-164; H. R. Rep. No. 544, 90th Cong., 1st Sess., 100-101 (1967) (hereinafter H. R. Rep. No. 544).

       Nor does the Illinois system indicate why such a distinction should be made. Since a related foster parent is subject to the same state-imposed responsibilities as a nonrelated foster parent, their costs must be equivalent.

       Relying on General Electric Co. v. Gilbert, 429 U. S. 125, 142-143 (1976), appellants maintain that the Program Instruction conflicts with an earlier HEW pronouncement and therefore deserves little weight. They refer to an inconsistent interpretation of § 408 sent to Illinois authorities in 1971 by a regional HEW official, which stated that foster children placed in related homes are not eligible for Poster Care benefits under the federal program. However, this correspondence was not approved by HEW’s General Counsel or by any departmental official in the national office. See letter from HEW’s Assistant General Counsel to Illinois Special Assistant Attorney General Richard Ryan (Dec. 22, 1976), App. to Brief for United States as Amicus Curiae la. Since the letter did not reflect an official position, we take the Program Instruction to be the agency’s first and only national interpretation concerning § 408’s coverage of foster care by relatives. Appellants’ reliance on General Electric Co. v. Gilbert, supra, is therefore misplaced, and we are bound by the “principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Bed Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969) (footnote omitted); see Board of Governors of the Federal Reserve System v. First Lincolnwood Corp., 439 U. S. 234, 251 (1978); Zemel v. Rusk, 381 U. S. 1, 11-12 (1965); Udall v. Tollman, 380 U. S. 1, 16-18 (1965).

       Illinois recognizes as much by providing special grants to some foster children placed with relatives which are not available to other basic AFDC recipients. See n. 12, supra.


author: Mr. Justice Marshall Mr. Justice Rehnquist, Mr. Justice White,

text:
    MONTANA et al. v. UNITED STATES
    No. 77-1134.
    Argued December 4, 1978
    Decided February 22, 1979

      MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blacicmun, Powell, Rehnquist, and Stevens, JJ., joined. Rehnquist, J., filed a concurring statement, post, p. 164. White, J., filed a dissenting opinion, post, p. 164.

      Robert A. Poore, Special Assistant Attorney General of Montana, argued the cause for appellants. With him on the brief were Terry B. Cosgrove, Special Assistant Attorney General, and Robert W. Corcoran.

      Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Ferguson, and David English Carmack.

       Briefs of amici curiae urging reversal were filed by Louis J. Lejkowitz,
        Attorney General, Ruth Kessler Toch, Solicitor General, and Francis V. Dow, Assistant Attorney General, for the State of New York; by Slade Oorton, Attorney General, Richard H. Holmquist, Senior Assistant Attorney General, and Greg Montgomery, Assistant Attorney General, for the State of Washington; and by the Attorneys General and other officials for their respective jurisdictions as follows: J. Marshall Coleman, Attorney General of Virginia, and John G. MacConnell, Assistant Attorney General; John A. Lasota, Acting Attorney General of Arizona, and Ian A. MacPherson, Assistant Attorney General; Allen I. Olson, Attorney General of North Dakota, and Kenneth Jakes, Special Assistant Attorney General; Avrum M. Gross, Attorney General of Alaska, and Joseph K. Donohue, Assistant Attorney General; Paul L. Douglas, Attorney General of Nebraska, and Ralph H. Gillan, Assistant Attorney General; Frank B. Burch, Attorney General of Maryland, and Gerald Langbaum, Assistant Attorney General; Ronald Y. Amemiya, Attorney General of Hawaii, and T. Bruce Honda, Deputy Attorney General; Robert List, Attorney General of Nevada, and James H. Thompson, Chief Deputy Attorney General; James A. Redden, Attorney General of Oregon; William J. Baxley, Attorney General of Alabama, and Herbert I. Burson, Jr.; John J. Rooney, Acting Attorney General of Wyoming, and James D. Douglass, Senior Assistant Attorney General; Philip H. Jacobsen, Acting Attorney General of Guam; Slade Gorton, Attorney General of Washington, and Richard H. Holm-quist, Senior Assistant Attorney General; Bill Clinton, Attorney General of Arkansas, and Martin J. Nevrla, Assistant Attorney General; Robert L. Shevin, Attorney General of Florida, and Maxie Broome, Assistant Attorney General; Chauncey H. Browning, Jr., Attorney General of West Virginia, and Thomas J. Steele, Jr., Assistant Attorney General; Richard C. Turner, Attorney General of Iowa, and George Murray, Assistant Attorney General; Wayne L. Kidwell, Attorney General of Idaho, and Theodore V. Spangler, Jr.; Toney Anaya, Attorney General of New Mexico, and Jan Unna, Assistant Attorney General; Theodore L. Sendak, Attorney General of Indiana, and Donald Bogará; Miguel Gimenez-Munoz, Attorney General of Puerto Rico, and Victor Cruz Ojeda; Frank J. Kelley, Attorney General of Michigan; and J. D. MacFarlane, Attorney General of Colorado, and Steven Kaplan, Assistant Attorney General.

   Mr. Justice Marshall

delivered the opinion of the Court.

The State of Montana imposes a one percent gross receipts tax upon contractors of public, but not private, construction projects. Mont. Rev. Codes Ann. §84-3505 (Supp. 1977). A public contractor may credit against the gross receipts tax its payments of personal property, corporate income, and individual income taxes. Any remaining gross receipts liability is customarily passed on in the form of increased construction costs to the governmental unit financing the project. At issue in this appeal is whether a prior judgment by the Montana Supreme Court upholding the tax precludes the United States from contesting its constitutionality and if not, whether the tax discriminates against the Federal Government in violation of the Supremacy Clause.

I

In 1971, Peter Kiewit Sons’ Co., the contractor on a federal dam project in Montana, brought suit in state court contending that the Montana gross receipts tax unconstitutionally discriminated against the United States and the companies with which it dealt. The litigation was directed and financed by the United States. Less than a month after the state suit was filed, the Government initiated this challenge to the constitutionality of the tax in the United States District Court for the District of Montana. On stipulation by the parties, the instant case was continued pending resolution of the state-court litigation.

That litigation concluded in a unanimous decision by the Montana Supreme Court sustaining the tax. Peter Kiewit Sons’ Co. v. State Board of Equalization, 161 Mont. 140, 505 P. 2d 102 (1973) (Kiewit I). The court found the distinction between public and private contractors consistent with the mandates of the Supremacy and Equal Protection Clauses. Id., at 149-154, 505 P. 2d, at 108-110. The contractor subsequently filed a notice of appeal to this Court, but abandoned its request for review at the direction of the Solicitor General. App. to Juris. Statement 86-87. It then instituted a second action in state court seeking a refund for certain tax payments different from those involved in Kiewit I. On determining that the contractor’s second legal claim was, in all material respects, identical to its first, the Montana Supreme Court invoked the doctrines of collateral estoppel and res judicata to affirm the dismissal of the complaint. Peter Kiewit Sons’ Co. v. Department of Revenue, 166 Mont. 260, 531 P. 2d 1327 (1975) (Kiewit II).

After the decision in Kiewit II, a three-judge District Court heard the instant case on the merits. In a divided opinion, the court concluded that the United States was not bound by the Kiewit I decision, and struck down the tax as viola-tive of the Supremacy Clause. 437 F. Supp. 354 (1977). The majority began with the premise that the Supremacy Clause immunizes the Federal Government not only from direct taxation by the States, but also from indirect taxation that operates to discriminate against the Government or those with whom it transacts business. Id., at 359. See United States v. Detroit, 355 U. S. 466, 473 (1958); Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 387 (1960). Because no private contractors were subject to the Montana gross receipts tax, the court reasoned that the statute impermissibly singled out the Federal Government and those with whom it dealt for disparate treatment. That the tax applied to state and municipal as well as federal contractors did not, in the majority’s view, negate the statute’s discriminatory character. For although contractors on state projects might pass on the amount of their tax liability to the State in the form of higher construction costs, Montana would recoup its additional expenditure through the revenue that the tax generated. By contrast, when federal contractors shifted the burden of their increased costs to the United States, it would receive no such offsetting revenues. Accordingly, the court concluded that the statute encroached upon the immunity from discriminatory taxation enjoyed by the Federal Government under the Supremacy Clause. 437 F. Supp., at 358-359. One judge argued in dissent both that the United States was estopped from challenging the constitutionality of the tax and that the statutory scheme, because it encompassed receipts of municipal and state as well as federal contractors, was not discriminatory within the meaning of Phillips Chemical Co. v. Dumas Independent School Dist., supra. 437 F. Supp., at 365-366 (Kilkenny, J., dissenting).

We noted probable jurisdiction. 436 U. S. 916 (1978). Because we find that the constitutional question presented by this appeal was determined adversely to the United States in a prior state proceeding, we reverse on grounds of collateral estoppel without reaching the merits.

II

A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . . Southern Pacific R. Co. v. United States, 168 U. S. 1, 48-49 (1897). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.Cromwell v. County of Sac, 94 U. S. 351, 352 (1877); Lawlor v. National Screen Service Corp., 349 U. S. 322, 326 (1955); 1B J. Moore, Federal Practice ¶ 0.405 [1], pp. 621-624 (2d ed. 1974) (hereinafter IB Moore); Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, Mar. 28, 1973) (merger) ; id., §48 (bar). Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326 n. 5 (1979); Scott, Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1, 2-3 (1942); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue preclusion) . Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. Southern Pacific R. Co., supra, at 49; Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294, 299 (1917). To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.

These interests are similarly implicated when nonparties assume control over litigation in which they have a direct financial or proprietary interest and then seek to redetermine issues previously resolved. As this Court observed in Souf-front v. Compagine des Sucreries, 217 U. S. 475, 486-487 (1910), the persons for whose benefit and at whose direction a cause of action is litigated cannot be said to be “strangers to the cause. ... [0]ne who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own ... is as much bound ... as he would be if he had been a party to the record.” See Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260, 262 n. 4 (1961); cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 111 (1969). Preclusion of such nonparties falls under the rubric of collateral estoppel rather than res judicata because the latter doctrine presupposes identity between causes of action. And the cause of action which a nonparty has vicariously asserted differs by definition from that which he subsequently seeks to litigate in his own right. See G. & C. Merriam Co. v. Saalfield, 241 U. S. 22, 29 (1916); Restatement (Second) of Judgments § 83, Comment b, p. 51 (Tent. Draft No. 2, Apr. 15, 1975); IB Moore ¶ 0.411 [6], pp. 1553-1554; Note, Developments in the Law — Res Judicata, 65 Harv. L. Rev. 818, 862 (1952).

That the United States exercised control over the Kiewit I litigation is not in dispute. The Government has stipulated that it:

(1) required the Kiewit I lawsuit to be filed;
(2) reviewed and approved the complaint;
(3) paid the attorneys’ fees and costs;
(4) directed the appeal from State District Court to the Montana Supreme Court;
(5) appeared and submitted a brief as amicus in the Montana Supreme Court;
(6) directed the filing of a notice of appeal to this Court; and
(7) effectuated Kiewit’s abandonment of that appeal on advice of the Solicitor General. App. to Juris. Statement 86-87.

Thus, although not a party, the United States plainly had a sufficient “laboring oar” in the conduct of the state-court litigation to actuate principles of estoppel. Drummond v. United States, 324 U. S. 316, 318 (1945). See Schnell v. Peter Eckrich & Sons, Inc., supra, at 262 n. 4; Souffront v. Compagnie des Sucreries, supra, at 486-487; Watts v. Swiss Bank Corp., 27 N. Y. 2d 270, 277-278, 265 N. E. 2d 739, 743-744 (1970).

Ill

To determine the appropriate application of collateral es-toppel in the instant case necessitates three further inquiries: first, whether the issues presented by this litigation are in substance the same as those resolved against the; United States in Kiewit I; second, whether controlling facts or legal principles have changed significantly since the state-court judgment; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion.

A

A review of the record in Kiewit I dispels any doubt that the plaintiff there raised and the Montana Supreme Court there decided the precise constitutional claim that the United States advances here. In its complaint in Kiewit I, the contractor alleged that the gross receipts tax and accompanying regulations were unconstitutional because they, inter alia:

“(a) illegally discriminate against the Plaintiff, the United States, and its agencies and instrumentalities, and those with whom the United States does business, and deny them due process of law and the equal protection of the laws;
“(b) illegally impose a tax on Plaintiff which is not uniform upon the same class of subjects;
“(c) illegally and improperly interfere with the Federal Government’s power to select contractors and schedule construction and . . . conflict with Federal law and policy regulating Federal procurement;
“(d) illegally violate the immunity of the Federal Government and its instruments (including Plaintiff) from state control in the performance of their functions; [and]
“(f) illegally frustrate the Federal policy of selecting the lowest possible bidder . . . App. 37.

The Montana Court rejected those contentions on the theory that:

“The federal government is being treated in the same manner as the state of Montana treats itself and its subdivisions or municipalities. The only discrimination the federal government can claim is that private contractors are not paying the same tax as public contractors. However, according to [Phillips Chemical Co. v. Dumas School Dist., 361 U. S. 376 (1960), and Moses Lake Homes v. Grant County, 365 U. S. 744 (1961),] ... all [that is] required is that the state does not give itself special treatment oyer that received by the federal government. The Act involved here treats the federal government in the same manner as it treats those who deal with any part of the state government.” Kiewit I, 161 Mont., at 152, 505 P. 2d, at 109.

No different constitutional challenge is at issue in this litigation. Indeed, the United States' amended complaint tracks almost verbatim the language of the plaintiff’s in Kiewit I in alleging that the Montana tax provisions:

“(1) illegally discriminate against the plaintiff, United States, and its agencies and instrumentalities, and those with whom the United States does business in violation of the Supremacy Clause, Article VI, Clause 2, and the Fourteenth Amendment;
“(2) illegally impose a tax on plaintiff’s contractors and subcontractors which is not uniform upon the same class of subjects in violation of the Fourteenth Amendment;
“(3) illegally force the United States of America to pay more for its construction than does a private party or corporation in violation of the Supremacy Clause, Art. VI, Cl. 2; [and]
“(5) . . . illegally interfere] with the Federal Government’s free choice to choose its contractors and frustrate] the policy of choosing the lowest bidder in violation of federal procurement law and the Supremacy Clause, Art. IV [sic], Cl. 2.” App.67.

Thus, the “question expressly and definitely presented in this suit is the same as that definitely and actually litigated and adjudged” adversely to the Government in state court. United States v. Moser, 266 U. S. 236, 242 (1924). Absent significant changes in controlling facts or legal principles since Kiewit I, or other special circumstances, the Montana Supreme Court’s resolution of these issues is conclusive here.

B

Relying on Commissioner v. Sunnen, 333 U. S. 591 (1948), the United States argues that collateral estoppel extends only to contexts in which “the controlling facts and applicable legal rules remain unchanged. Id., at 600. In the Government’s view, factual stasis is missing here because the contract at issue in Kiewit I contained a critical provision which the contracts involved in the instant litigation do not.

Under its contract with the Army Corps of Engineers, Kiewit was unable to take advantage of the credit provisions of the gross receipts tax. In 1971, however, the United States altered its policy and has since required Montana contractors to seek all available refunds and credits. See 437 F. Supp., at 358; App. 91. As the Government reads the Kiewit I decision, the Montana Supreme Court proceeded on the assumption that if Kiewit had been able to avail itself of the offsetting income and property tax credits, there might have been a “total washout” of its gross receipts tax liability. 161 Mont., at 145, 505 P. 2d, at 106. Thus, according to the Government, the holding of Kiewit I was that the Montana statute did not discriminate against the United States under circumstances where, but for the Federal Government’s own contractual arrangement, the tax might have had no financial impact. Brief for United States 35-36. Because the uncon-troverted evidence in this case establishes that after taking all credits available, federal contractors are still subject to a gross revenue tax of one-half of one percent, App. to Juris. Statement 90, the Government submits that the factual premise of the Kiewit I holding is absent here.

We disagree. It is, of course, true that changes in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues. See, e. g., United States v. Certain Land at Irving Place & 16th Street, 415 F. 2d 265, 269 (CA2 1969); Metcalf v. Commissioner, 343 F. 2d 66, 67-68 (CA1 1965); Alexander v. Commissioner, 224 F. 2d 788, 792-793 (CA5 1955); IB Moore ¶ 0.448, pp. 4232-4233, ¶ 0.422 [4], pp. 3412-3413. But we do not construe the opinion in Kiewit I as predicated on the factual assumption that the gross receipts tax would cancel out if public contractors took all available refunds and credits.

The Montana Supreme Court adverted to the washout possibility when discussing the origin of the gross receipts tax as a revenue-enforcing rather than revenue-generating measure. Prior to the enactment of the statute, certain public contractors had evaded assessment of local property taxes by shifting equipment from one construction site to another, and by filing corporate or personal income tax returns that did not fairly reflect the amount of profit attributable to construction projects within the State. 161 Mont., at 143-145, 505 P. 2d, at 104-105. In establishing a flat percentage tax on gross receipts, with credits available for income and property tax payments, the Montana Legislature sought to remove any incentive for contractors to dissemble about the location of taxable equipment and the source of taxable revenues. Under the statutory scheme, a contractor who paid a substantial amount of property or income taxes might, by claiming those payments as credits, effectively cancel out his gross receipts tax liability. Id., at 145, 505 P. 2d, at 105. In practice, the court noted in Kiewit I, the statute had not resulted in a total offset of the 1% gross receipts payments, in part because of provisions such as those in federal contracts. Ibid., 505 P. 2d, at 106. Significantly, however, the court did not rely on the potential absence of tax liability in its analysis of Kiewit’s constitutional challenge. Indeed, it did not even allude to the washout potential in the course of that discussion. Id., at 147-154, 505 P. 2d, at 106-110. It focused rather on the rationality of the classification between public and private contractors, and on the parity of treatment between the United States and other public contractors. Ibid.

Our conclusion that the washout potential of the tax was not of controlling significance in Kiewit I is further reinforced by the Montana Supreme Court’s holding in Kiewit II. There, the contractor alleged that its gross receipts tax liability had exceeded its property and income tax credits, and argued that “the only basis” for the decision in Kiewit I was that “if the Act were properly enforced it would result in a ‘washout.’ ” Kiewit II, 166 Mont., at 262, 531 P. 2d, at 1328. The Montana Supreme Court rejected that reading of Kiewit I as “much too narro[w].” 166 Mont., at 263, 531 P. 2d, at 1329. That the offset possibility had not materialized for Kiewit was, in the court’s view, a fact too “inconsequential” to warrant relitigation of the statute’s constitutionality. Id., at 264, 531 P. 2d, at 1329. So too here, we cannot view the absence of a total washout as altering facts essential to the judgment in Kiewit I.

Thus, unless there have been major changes in the law governing intergovernmental tax immunity since Kiewit I, the Government’s reliance on Commissioner v. Sunnen, 333 U. S. 591 (1948), is misplaced. Sunnen involved the tax status of certain income generated by a license agreement during a particular tax period. Although previous litigation had settled the status of income from the same agreement during earlier tax years, the Court declined to give collateral estoppel effect to the prior judgment because there had been a significant “change in the legal climate.” Id., at 606: Underlying the Sunnen decision was a concern that modifications in “controlling legal principles,” id., at 599, could render a previous determination inconsistent with prevailing doctrine, and that

“[i]f such a determination is then perpetuated each succeeding year as to the taxpayer involved in the original litigation, he is accorded a tax treatment different from that given to other taxpayers of the same class. As a result, there are inequalities in the administration of the revenue laws, discriminatory distinctions in tax liability, and a fertile basis for litigious confusion. [Collateral estoppel] is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby causing inequities among taxpayers.” Ibid, (citations omitted).

No such considerations obtain here. The Government does not contend and the District Court did not find that a change in controlling legal principles had occurred between Kiewit I and the instant suit. That the Government’s amended complaint in this action replicates in substance the legal argument advanced by the contractor’s complaint in Kiewit I further suggests the absence of any major doctrinal shifts since the Montana Supreme Court’s decision.

Because the factual and legal context in which the issues of this case arise has not materially altered since Kiewit I, normal rules of preclusion should operate to relieve the parties of “redundant litigation [over] the identical question of the statute’s application to the taxpayer’s status.” Tait v. Western Maryland R. Co., 289 U. S. 620, 624 (1933). See United States v. Russel Mfg. Co., 349 F. 2d 13, 18-19 (CA2 1965).

C

The sole remaining question is whether the particular circumstances of this case justify an exception to general principles of estoppel. Of possible relevance is the exception which obtains for “unmixed questions of law” in successive actions involving substantially unrelated claims. United States v. Moser, 266 U. S. 236, 242 (1924). As we recognized in Moser:

“Where, for example, a court in deciding a case has enunciated a rule of law, the parties in a subsequent action upon a different demand are not estopped from insisting that the law is otherwise, merely because the parties are the same in both cases. But a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.” Ibid, (emphasis added).

Thus, when issues of law arise in successive actions involving unrelated subject matter, preclusion may be inappropriate. See Restatement (Second) of Judgments § 68.1, Reporter’s Note, pp. 43-44 (Tent. Draft No. 4, Apr. 15, 1977); IB Moore ¶ 0.448, p. 4235; Scott, 56 Harv. L. Rev., at 10. This exception is of particular importance in constitutional adjudication. Unreflective invocation of collateral estoppel against parties with an ongoing interest in constitutional issues could freeze doctrine in areas of the law where responsiveness to changing patterns of conduct or social mores is critical. To be sure, the scope of the Moser exception may be difficult to delineate, particularly where there is partial congruence in the subject matter of successive disputes. But the instant case poses no such conceptual difficulties. Rather, as the preceding discussion indicates, the legal “demands” of this litigation are closely aligned in time and subject matter to those in Kiewit I.

Nor does this case implicate the right of a litigant who has “properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims,” and who is then “compelled, without his consent ... , to accept a state court’s determination of those claims.” England v. Medical Examiners, 375 U. S. 411, 415 (1964) (footnote omitted). As we held in England, abstention doctrine may not serve as a vehicle for depriving individuals of an otherwise cognizable right to have federal courts make factual determinations essential to the resolution of federal questions. Id., at 417. See NAACP v. Button, 371 U. S. 415, 427 (1963). However, here, as in England, a party has “freely and without reservation submit [ted] his federal claims for decision by the state courts . . . and ha[d] them decided there . . . .” England v. Medical Examiners, supra, at 419. Considerations of comity as well as repose militate against redetermination of issues in a federal forum at the behest of a plaintiff who has chosen to litigate them in state court.

Finally, the Government has not alleged unfairness or inadequacy in the state procedures to which it voluntarily submitted. We must conclude therefore that it had a full and fair opportunity to press its constitutional challenges in Kiewit I. Accordingly, the Government is estopped from seeking a contrary resolution of those issues here.

The judgment of the District Court is

Reversed.

Mr. Justice Rehnquist,

concurring.

I join the Court’s opinion on the customary understanding that its references to law review articles and drafts or finally adopted versions of the Restatement of Judgments are not intended to bind the Court to the views expressed therein on issues not presented by the facts of this case.

Mr. Justice White,

dissenting.

I disagree that the Government was estopped from litigating its claim in federal court by virtue of the earlier action in the courts of Montana. And on the merits I think the Montana gross receipts tax is constitutionally infirm. Thus, I would affirm the decision below.

I

It is basic that the principle of collateral estoppel "must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts . . . remain unchanged.” Commissioner v. Sunnen, 333 U. S. 591, 599-600 (1948). The Court does not dispute this, but maintains that discrepancies in the facts underlying the state and federal actions were of no moment. It is clear, however, that the Montana Supreme Court assumed in Kiewit I that the tax under scrutiny was a tax-enforcing, rather than a revenue-collecting, measure. The significance of that supposition, in my view, is refuted neither by the opinion in Kiewit I nor by the state court’s subsequent pronouncements in Kiewit II. That the assumption lost its force by the time of the federal litigation is undisputed. By then the Federal Government had abandoned its policy of requiring contractors with whom it dealt to forgo credits available under the gross receipts law. Though federal contractors accordingly availed themselves of the credits and refunds allowable under the law, “the uncontroverted evidence in this case establishes that . . . federal contractors are still subject to a [net] gross revenue tax of one-half of one percent.” Ante, at 158-159. Because the facts developed before the three-judge court cast the constitutional issues in a wholly different light, I think the court properly proceeded to decide those issues uninhibited by the prior state adjudication.

At the outset of its discussion in Kiewit I, the Montana Supreme Court labored to demonstrate that the gross receipts tax in issue was a tax-enforcing measure, in that funds collected pursuant thereto would be applied, or credited, against taxes otherwise due. The court understood that the tax had not in practice resulted in a total washout of gross receipts payments, but it attributed this to the Federal Government’s policy prohibiting certain contractors — such as the Kiewit Co. itself' — from taking refunds and credits available under the law, and to ignorance of, and indifference to, the credit provisions on the part of other contractors. The court maintained that, aside from such aberrations, the Act was intended to and would “operate as a revenue enforcing measure.” Peter Kiewit Sons’ Co. v. State Board of Equalization, 161 Mont. 140, 146, 505 P. 2d 102, 106 (1973) (emphasis added).

The majority surmises that the state court’s extensive characterization of the tax was irrelevant to the court’s constitutional analysis. But that view relegates to dicta the state court’s careful appraisal of the operation and impact of the tax. By inspecting the state court’s constitutional analysis independently of that court’s evaluation of the nature of the tax, the majority assumes that the constitutional adjudication proceeded in vacuo. The logic of the state court’s decision may well extend to a revenue-raising measure. But to say that Kiewit I may be persuasive authority on that score is not to establish that it has adjudicated the issue.

Moreover, the Court’s reliance on Kiewit II to demonstrate the immateriality of the “washout” nature of the tax to the decision in Kiewit I is misplaced. I recognize that the Montana Supreme Court regarded Kiewit’s second attack— launched after the contractual credit restrictions were removed by the Government — as foreclosed by the judgment in the first suit. But in addressing Kiewit’s objection to the application of the tax in a manner to raise revenue, the court acknowledged that “it may be that Kiewit would be entitled to a refund or some other administrative remedy.” Peter Kiewit Sons’ Co. v. Department of Revenue, 166 Mont. 260, 262, 531 P. 2d 1327, 1328 (1975). The statute, of course, contemplates no such remedy, nor did the court affirmatively construe it to authorize one. Yet the court’s remark leaves unclear whether, absent such a remedy, the court would persist in holding the tax constitutional. The statement underscores the court’s assumption in Kiewit I that the gross receipts tax was a tax-enforcing device and suggests correla-tively that the decision there did not condone imposition of an unmitigated positive tax solely on public contractors. The majority is unsound in inferring from Kiewit II that the ruling in Kiewit I was insensitive to the then-presumed “washout” character of the gross receipts tax.

As I see it, then, there was a “modification of the significant facts” that rendered the prior state “determination obsolete ... at least for future purposes,” Commissioner v. Sunnen, supra, at 599; and the Government was free to litigate its constitutional challenge in federal court.

II

On the merits, the judgment below should be sustained. There is nothing wrong, of course, with a state gross receipts tax of general applicability that incidentally applies to contractors who deal with the Federal Government thus increasing its construction costs. United States v. County of Fresno, 429 U. S. 452, 460 (1977); James v. Dravo Contracting Co., 302 U. S. 134, 160 (1937). “So long as the tax is not directly laid on the Federal Government, it is valid if nondiscriminatory ... or until Congress declares otherwise.” United States v. County of Fresno, supra, at 460.

In Fresno, we stressed the requirement that the state tax be “imposed equally on the other similarly situated constituents of the State.” 429 U. S., at 462. Such concern for discriminatory taxation “returns to the original intent of M‘Culloch v. Maryland[, 4 Wheat. 316 (1819)].” Id., at 462-463. We observed that “[t]he political check against abuse of the taxing power found lacking in M‘Culloch ... is present where the State imposes a nondiscriminatory tax only on its constituents or their artificially owned entities; and M‘Culloch foresaw the unfairness in forcing a State to exempt private individuals with beneficial interests in federal property from taxes imposed on similar interests held by others in private property.” Ibid.

The Montana gross receipts tax cannot survive application of the foregoing principles. It is not a law generally embracing all similarly situated state constituents doing business in the private and public sectors. While mandating collection of revenue from contractors who transact with public entities, the law passes over all contractors who deal with private parties. Thus, the “political check” that would have been provided by private-sector contractors “against abuse of the taxing power [is] lacking.” Ibid.

Appellants maintain that contractors who deal with private enterprises are not situated similarly to those who transact with public bodies. They point to special problems associated with enforcement of state tax laws against contractors prone to move about the State in pursuit of large public contracts. The gross receipts tax measure was necessary, it is argued, in order to facilitate enforcement of other tax laws against such contractors. Concededly, however, the same problems exist with respect to large private contractors; and even assuming that differentiation between public-sector and private-sector contractors is warranted in the context of tax enforcement measures, appellants’ representations provide no basis for discriminating in regard to revenue raising.

The Montana Supreme Court in the Kiewit litigation defended the classification for equal protection purposes by submitting that the public’s stake in the safety of building projects, and hence in the qualifications of public contractors, warranted treating public-sector contractors differently from their private-sector counterparts. But these considerations, like the matters advanced by appellants, fail to explain why a tax is collected from the former but not the latter. Moreover, though the law may be sustainable against an equal protection assault, the indulgent standard used in that area will not be applied when federal supremacy is threatened. See Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 383-385 (1960). In such circumstances, disparate treatment “must be justified by significant differences between the two classes”; there must be “considerations pro-vid[ing] solid support for the classification.” Id., at 383-384 (emphasis added). It seems plain, then, that private-sector and public-sector contractors are similarly situated for purposes of this litigation.

Ill

Appellants contend, nonetheless, that it is enough that the tax reaches contractors dealing with all public entities — state or federal. Appellants root their contention in this Court’s statement in Phillips Chemical Co. v. Dumas Independent School Dist., supra, at 385, that a State must “treat those who deal with the Government as well as it treats those with whom it deals itself.” (Emphasis added.) But Phillips furnishes no support for appellants’ position. There, the Court held unconstitutional a state tax scheme that treated lessees of federal property more severely than lessees of state property. Even before addressing that issue, however, the Court ascertained that there was “no discrimination between the Government’s lessees and lessees of private property.” 361 U. S., at 381. Thus, the Court in Phillips evinced concern for equal treatment of all similarly situated persons connected with both the private and public sector, not just of persons within the public sector.

In any event, I see no basis whatsoever for extracting from the principle that a State may not favor itself over the Federal Government the further proposition that a State may favor its private-sector constituents so long as contractors working for public bodies are taxed. Indeed, in Fresno the Court sustained the tax only after assuring itself that persons who rented federal property were “no worse off under California tax laws than those who work for private employers and rent houses in the private sector.” 429 U. S., at 465. Such laws, reaching broadly across the public and private sectors, are characteristic of those this Court has sustained. E. g., United States v. Detroit, 355 U. S. 466 (1958); Detroit v. Murray Corp., 355 U. S. 489 (1958); Alabama v. King & Boozer, 314 U. S. 1 (1941); James v. Dravo Contracting Co., 302 U. S. 134 (1937); Silas Mason Co. v. Tax Comm’n, 302 U. S. 186 (1937).

There is good reason to insist that a state tax be “imposed equally” on all “similarly situated constituents of the State,” United States v. County of Fresno, 429 U. S., at 462, whether connected with the public sector or private. Broad application of a tax is necessary to guarantee an efficacious “political check” on potentially abusive taxation. The Montana gross receipts tax, limited as it is to public-sector contractors, provides little such assurance. Taxation of contractors dealing directly with the State or state agencies affords no safeguard against discriminatory treatment of federal contracting agencies and the contractors with whom they deal. Any tax increase passed along by a contractor would be borne fully by a federal agency but would be offset by the corresponding tax revenues in the case of the State; from the State’s perspective the tax is a washout.

Municipalities and local districts, it is true, do not enjoy the same advantage, and they may resist tax increases that would, if successfully enforced, burden them and the Federal Government alike. But, at least potentially, local subdivisions may secure offsetting state assistance by indirection, and that may diminish their incentive to oppose tax hikes. Even assuming, however, that local public bodies share an interest with the Federal Government in restraining taxes, it escapes me why the Government must acquiesce in the limited protection they provide when an enhanced political check would ensue from extension of the tax to other similarly situated state constituents. As I have indicated, there is no support for such a notion in the decisions of this Court. McCulloch, itself, condoned state taxation of private interests in federal property “in common with other property of the same description throughout the State.’’ McCulloch v. Maryland, 4 Wheat. 316, 436 (1819) (emphasis added). And in Fresno we observed that escalation of a state tax so as to destroy or impair a federal function might be forestalled by imposition of the tax “on the income and property interests of all other residents and voters of the State.” 429 U. S., at 463 n. 11. These decisions counsel against nice determinations regarding the political leverage of this group or that and establish the simple but fundamental proposition that the Federal Government is entitled to the full measure of protection derivable from inclusion of all similarly situated state constituents in the class subject to the tax.

Appellants suggested at oral argument that private-sector contracting comprises a relatively small percentage of all contracting in the State and argue that exclusion of private-sector contractors from the ambit of the gross receipts tax is therefore excusable. But appellants do not seriously contend that private-sector contracting in Montana is de minimis, nor would any such assertion find support in the record. Private contracting parties, if subjected to this tax, would provide significant additional protection against abuse of the state taxing power. Exempting the private sector from the Montana gross receipts tax was accordingly contrary to the Constitution.

As I believe the three-judge court properly reached and decided the merits of the Government’s claim, I dissent from reversal of the judgment below.

       Section 84-3505 (5), Mont. Rev. Codes Ann. (Supp. 1977), provides in part:
      “each public contractor shall pay to the state an additional license fee in a sum equal to one per cent (1%) of the gross receipts from public contracts during the income year for which the license is issued . . .

      The Act defines public contractors to include:
      “(1) . . . any person who submits a proposal to or enters into a contract for performing all public construction work in the state with the federal government, state of Montana, or with any board, commission, or department thereof or with any board of county commissioners or with any city or town council ... or with any other public board, body, commission, or agency authorized to let or award contracts for any public work when the contract cost, value, or price thereof exceeds the sum of $1,000.
      “(2) . . . subcontractors undertaking to perform the work covered by the original contract or any part thereof, the contract cost, value, or price of which exceeds the sum of $1,000.” §84-3501 (Supp. 1977).
      Gross receipts encompass:
      “all receipts from sources within the state, whether in the form of money, credits, or other valuable consideration, received from, engaging in, or conducting a business, without deduction on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest paid, taxes, losses, or any other expense whatsoever. However, 'gross receipts’ shall not include cash discounts allowed and taken on sales and sales refunds, either in cash or by credit, uncollectible accounts written off from time to time, or payments received in final liquidation of accounts included in the gross receipts of any previous return made by the person.” § 84-3501 (3).

       See §§ 84-3513 and 84-3514 (Supp. 1977).

       See App. 98-108, 112-117, 164.

       See Hazard, Res Nova in Res Judicata, 44 S. Cal. L. Rev. 1036, 1042-1043 (1971); Vestal, Preclusion/Res Judicata Variables: Adjudicating Bodies, 54 Geo. L. J. 857, 858 (1966); Note, Developments in the Law — Res Judicata, 65 Harv. L. Rev. 818, 820 (1952).

       Although the term “privies” has been used on occasion to denominate nonparties who control litigation, see, e. g., G. & C. Merriam Co. v. Saalfield. 241 U. S. 22, 27 (1916); Restatement of Judgments §83, Comment a (1942), this usage has been criticized as conclusory and analytically unsound. IB Moore ¶0.411 [6], p. 1553; cf. Note, 65 Harv. L. Rev., at 856. The nomenclature has been abandoned in the applicable section of the Second Edition of the Restatement. See Restatement (Second) of Judgments § 83 (Tent. Draft No. 2, Apr. 15, 1975).

       Clause 58 of the contract enumerated the credit provisions of the Montana statute and provided that “[t]he Contractor, and, in turn, the subcontractors will not take advantage of these credits.” Peter Kiewit Sons’ Co. v. State Board of Equalization, 161 Mont. 140, 145-146, 505 P. 2d 102, 106 (1973) (Kiewit I).

      The record does not reflect the reason for the Government’s policy. See Tr. of Oral Arg. 35.

       A threshold difficulty with the Government’s argument is that the record does not support its assertion that contractual provisions barring contractors from taking credits are “no longer applicable in the contracts involved in this litigation.” Brief for United States 14. See also Tr. of Oral Arg. 37. The Montana gross receipts statute was enacted in 1967, and the Government has not limited its request for relief to gross receipts taxes paid after 1971 when the contractual provisions involved in Kiewit I were discontinued. See supra, at 158. To the contrary, the Government’s amended complaint in the instant case seeks a refund of all tax payments, less credits, made under the Montana statute. App. 68-69. Thus, the Government’s contention concerning factual changes does not justify the District Court’s refusal to invoke estoppel with respect to the pre-1971 claims.

         Apparently the problem had not arisen to any appreciable extent with private contractors. Tr. of Oral Arg. 5-6.

       See supra, at 156-157.

       The Government seeks to distinguish England on the ground that the court below did not technically abstain, but rather, at the parties’ request, continued the action “pending the resolution in the state courts of Montana.” App. to Juris. Statement 49-50. Further, in the Government’s view, the rule of England arises only when a -party freely submits his federal claims to adjudication in state courts. Because the United States was not a party in Kiewit I, the Government submits that it is not bound by the judgment in that case. Brief for United States 34.
      We agree that the District Court’s action is properly characterized as a continuance and that res judicata, the doctrine involved in England, is inapplicable to nonparties. See supra, at 154-155. But neither point is availing here since we dispose of the case on grounds of collateral estoppel, which does apply to nonparties, see ibid., and invoke England simply to dispel any inference that the same result would obtain if the Federal Government had been forced into state court and had reserved its federal claim.

       Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation. See Restatement (Second) of Judgments § 68.1 (c) (Tent. Draft No. 4, Apr. 15, 1977); Note, The Preclusive Effect of State Judgements on Subsequent 1983 Actions, 78 Colum. L. Rev. 610, 640-653 (1978). Cf. Gibson v. Berryhill, 411 U. S. 564 (1973); Trainor v. Hernandez, 431 U. S. 434, 469-470, and n. 15 (1977) (Stevens, J., dissenting).

       The Administrator of the Miscellaneous Tax Division of the Montana Department of Revenue testified in the federal proceedings that no administrative remedy existed and that none was contemplated. Deposition of James Madison, Record Doc. No. 68, p. 16.

       It is true that the court indicated that its first opinion held that there were reasonable grounds for distinguishing between private and public contractors for tax purposes. But the discussion differentiating private and public contractors to which the court alluded was addressed to Kiewit’s equal protection claim, not its supremacy claim. See Peter Kiewit Sons’ Co. v. State Board of Equalization, 161 Mont. 140, 146-151, 505 P. 2d 102, 106-109 (1973).

       The court suggested that public contractors warrant special tax treatment because public construction projects are more extensively regulated than private jobs and are subject to mandatory supervision or inspection. But the State has stipulated that no “federal contracts [are] subject to state standards, review or supervision, nor [does the State] have any right or authority to suspend any federal contractor’s license, nor can the [State] interfere with selection of bidders for the Federal Government.” App. to Juris. Statement 79. Thus, the considerations posited by the state court do not distinguish private-sector contractors from those who deal with the Federal Government.

         Montana has authorized payment of state funds to local political entities in certain contexts. E. g., Mont. Rev. Codes Ann. §§ 50-1802 to 50-1810 (Supp. 1977) (funding for certain highway improvements and expansion, of services due to coal development); § 11-1834 (Supp. 1977) (state payments to municipalities with police departments); § 11-1919 (Supp. 1977) (state payments to municipalities with fire department relief associations).

       The record indicates, if anything, that private-sector contracting is nonnegligible. See App. 108-109, 166-167, 179, 183. See also Bureau of the Census, 1972 Census of Construction Industries 39-2, 39-4, 39-7 (1975).