author: Me. Justice Stewart Mr. Chief' Justice Burger, Mr. Justice Brennan,

text:
    UNITED STATES v. DINITZ
    No. 74-928.
    Argued December 2, 1975
    Decided March 8, 1976

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 612. Brennan, J., filed a dissenting opinion, in. which Marshall, J., joined, post, p. 613. Stevens, J., took no part in the consideration or decision of the case.

      John P. Rupp argued the cause for the United States. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Keeney, Deputy Solicitor General Frey, and Jerome M. Feit.

      Fletcher N. Baldwin, Jr., by appointment of the Court, 421 U. S. 906, argued the cause and filed a brief for respondent.
   Me. Justice Stewart

delivered the opinion of the Court.

The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment was violated by the retrial of the respondent after his original trial had ended in a mistrial granted at his request.

I

The respondent, Nathan Dinitz, was arrested on December 8, 1972, following the return of an indictment charging him with conspiracy to distribute LSD and with distribution of that controlled substance in violation of 84 Stat. 1260, 1265, 21 U. S. C. §§ 841 (a)(1), 846. On the day of his arrest, the respondent retained a lawyer named Jeffrey Meldon to represent him. Meldon appeared with the respondent at his arraignment, filed numerous pretrial motions on his behalf, and was completely responsible for the preparation of the case until shortly before trial. Some five days before the trial was scheduled to begin, the respondent retained another lawyer, Maurice Wagner, to conduct his defense. Wagner had not been admitted to practice before the United States District Court for the Northern District of Florida, but on the first day of the trial the court permitted him to appear pro hae vice. In addition to Meldon and Wagner, Fletcher Baldwin, a professor of law at the University of Florida, also appeared on the respondent’s behalf.

The jury was selected and sworn on February 14,1973, and opening statements by counsel began on the following afternoon. The prosecutor’s opening statement briefly outlined the testimony that he expected an undercover agent named Steve Cox to give regarding his purchase of LSD from the respondent. Wagner then began his opening statement for the defense. After introducing himself and his co-counsel, Wagner turned to the case against the respondent:

“Mr. Wagner: After working on this case over a period of time it appeared to me that if we would have given nomenclature, if we would have named this case so there could be no question about identifying it in the future, I would have called it The Case—
“Mr. Reed [Asst. U. S. Attorney]: Your Honor, we object to personal opinions.
“The Court: Objection sustained. The purpose of the opening statement is to summarize the facts the evidence will show, state the issues, not to give personal opinions. Proceed, Mr. Wagner.
“Mr. Wagner: Thank you, Your Honor. I call this the Case of the Incredible Witness.” App. 20.

The prosecutor again objected and the judge excused the jury. The judge then warned Wagner that he did not approve of his behavior and cautioned Wagner that he did not want to have to remind him again about the purpose of the opening statement.

Following this initial incident, the trial judge found it necessary twice again to remind Wagner of the purpose of the opening statement and to instruct him to relate “the facts that you expect the evidence to show, the admissible evidence.” Id., at 82. Later on in his statement, Wagner started to discuss an attempt to extort money from the respondent that had occurred shortly after his arrest. The prosecutor objected and the jury was again excused. Wagner informed the trial judge of some of the details of the extortion attempt and assured the court that he would connect it with the prospective Government witness Cox. But it soon became apparent that Wagner had no information linking Cox to the extortion attempt, and the trial judge then excluded Wagner from the trial and ordered him to leave the courthouse.

The judge then asked Meldon if he was prepared to proceed with the trial. Upon learning that Meldon had not discussed the case with the witnesses, the judge gave Meldon until 9 o’clock the following morning to prepare. Meldon informed the judge that the respondent was “in a quandary because he hired Mr. Wagner to argue the case and he feels he needs more time to obtain outside counsel to argue the case for him.” The judge responded that “[y]ou are his counsel and have been” but stated that he would consider the matter “between now and 9:00 o’clock tomorrow morning.” Id,., at 35.

The next morning, Meldon told the judge that the respondent wanted Wagner and not himself or Baldwin to try the case. The judge then set forth three alternative courses that might be followed — (1) a stay or recess pending application to the Court of Appeals to review the propriety of expelling Wagner, (2) continuation of the trial with Meldon and Baldwin as counsel, or (3) a declaration of a mistrial which would permit the respondent to obtain other counsel. Following a short recess, Meldon moved for a mistrial, stating that, after “full consideration of the situation and an explanation of the alternatives before him, [the respondent] feels that he would move for a mistrial and that this would be in his best interest.” Id., at 41. The Government prosecutor did not oppose the motion. The judge thereupon declared a mistrial, expressing his belief that such a course would serve the interest of justice.

Before his second trial, the respondent moved to dismiss the indictment on the ground that a retrial would violate the Double Jeopardy Clause of the Constitution. This motion was denied. The respondent represented himself at the new trial, and he was convicted by the jury on both the conspiracy and distribution counts. A divided panel of the Court of Appeals for the Fifth Circuit reversed the conviction, holding that the retrial violated the respondent’s constitutional right not to be twice put in jeopardy. 492 F. 2d 53. The appellate court took the view that the trial judge’s exclusion of Wagner and his questioning of Meldon had left the respondent no choice but to move for a mistrial. Id., at 59. On that basis, the court concluded that the respondent’s request for a mistrial should be ignored and the case should be treated as though the trial judge had declared a mistrial over the objection of the defendant. Ibid. So viewing the case, the court held that the Double Jeopardy Clause barred the second trial of the respondent, because there had been no manifest necessity requiring the expulsion of Wagner. The Court of Appeals granted rehearing en banc and, by á vote of 8-7, affirmed the decision of the panel. 504 F. 2d 854. We granted certiorari to consider the constitutional question thus presented. 420 U. S. 1003.

HH l-H

The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a. criminal proceeding against multiple punishments or repeated prosecutions for the same offense. See United States v. Wilson, 420 U. S. 332, 343; North Carolina v. Pearce, 395 U. S. 711, 717. Underlying this constitutional safeguard is the belief that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187-188. Where, as here, a mistrial has been declared, the defendant’s “valued right to have his trial completed by a particular tribunal” is also implicated. Wade v. Hunter, 336 U. S. 684, 689; United States v. Jorn, 400 U. S. 470, 484-485 (plurality opinion); Downum v. United States, 372 U. S. 734, 736.

Since Mr. Justice Story’s 1824 opinion for the Court in United States v. Perez, 9 Wheat. 579, 580, this Court has held that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on whether “there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.” Illinois v. Somerville, 410 U. S. 458, 461; United States v. Jorn, supra, at 481; Gori v. United States, 367 U. S. 364, 368-369; Wade v. Hunter, supra, at 689-690; Simmons v. United States, 142 U. S. 148, 153-154. Different considerations obtain, however, when the mistrial has been declared at the defendant’s request. The reasons for the distinction were discussed in the plurality opinion in the Jorn case:

“If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat., at 580.” 400 U. S., at 485 (footnote omitted).

The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire “to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” United States v. Jorn, supra, at 484. Our prior decisions recognize the defendant’s right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause — the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.

The Court of Appeals viewed the doctrine that permits a retrial following a mistrial sought by the defendant as resting on a waiver theory. The court concluded, therefore, that “something more substantial than a Hobson’s choice” is required before a defendant can “be said to have relinquished voluntarily his right to proceed before the first jury.” See 492 F. 2d, at 59. The court thus held that no waiver could be imputed to the respondent because the trial judge’s action in excluding Wagner left the respondent with “no choice but to move for or accept a mistrial.” Ibid. But traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error. See United States v. Jorn, 400 U. S., at 484-485, n. 11; United States v. Jamison, 164 U. S. App. D. C. 300, 305-306, 505 F. 2d 407, 412-413. In such circumstances, the defendant generally does face a “Hobson’s choice” between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.

. The-Court of Appeals’ determination that the manifest necessity standard should be applied to a mistrial motion when the defendant has “no choice” but to request a mistrial undermines rather than furthers the protections of the Double Jeopardy Clause. In the event of severely prejudicial error a defendant might well consider an immediate new trial a preferable alternative to the prospect of a probable conviction followed by an appeal, a reversal of the conviction, and a later retrial. Yet the Court of Appeals’ decision, in effect, instructs trial judges to reject the most meritorious mistrial motion in the absence of manifest necessity and to require, instead, that the trial proceed to its conclusion despite a legitimate claim of seriously prejudicial error. For if a trial judge follows that course, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is set aside by the trial judge or reversed on appeal. United States v. Ball, 163 U. S. 662.

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor,” United States v. Jorn, supra, at 485, threatens the “[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant. Downum v. United States, 372 U. S., at 736. See Gori v. United States, 367 U. S., at 369; United States v. Jorn, supra, at 489 (Stewart, J., dissenting); cf. Wade v. Hunter, 336 U. S., at 692.

But here the trial judge’s banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner “was guilty of improper conduct” during his opening statement which “may have justified disciplinary action,” 492 F. 2d, at 60-61. Even accepting the appellate court’s conclusion that the trial judge overreacted in expelling Wagner from the courtroom, ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge’s action was motivated by bad faith or undertaken to harass or prejudice the respondent.

Under these circumstances we hold that the Court of Appeals erred in finding that the retrial violated the respondent’s constitutional right not to be twice put in jeopardy. Accordingly, the judgment before us is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

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

Mr. Chief' Justice Burger,

concurring.

I concur fully with Mr. Justice Stewart’s opinion for the Court. I add an observation only to emphasize what is plainly implicit in the opinion, i. e., a trial judge’s plenary control of the conduct of counsel particularly in relation to addressing the jury.

An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.

A trial judge is under a duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop such professional misconduct. Here the misconduct of the attorney, Wagner, was not only unprofessional per se but contemptuous in that he defied the court’s explicit order.

Far from “overreacting” to the misconduct of Wagner, in my view, the trial judge exercised great restraint in not citing Wagner for contempt then and there.

Mr. Justice Brennan,

with whom Mr. Justice Marshall concurs, dissenting.

The Court’s premise is that the mistrial was directed at respondent’s request or with his consent. I agree with the Court of Appeals that, for purposes of double jeopardy analysis, it was not, but rather that “the trial judge’s response to the conduct of defense counsel deprived Dinitz’s motion for a mistrial of its necessary consensual character.” 492 F. 2d 53, 59 n. 9 (1974). Therefore the rule that “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution,” United States v. Jorn, 400 U. S. 470, 485 (1971) (plurality opinion), is inapplicable. Accordingly, I agree that respondent’s motion, for the reasons expressed in the panel and en banc opinions of the Court of Appeals, did not remove the bar of double jeopardy to reprosecution in “the extraordinary circumstances of the present case, in which judicial error alone, rather than [respondent’s] exercise of any option to stop or go forward, took away his ‘valued right to have his trial completed by a particular tribunal.’ ” 504 F. 2d 854-855 (1974). I also agree with the holding in the panel opinion that “[i]n view of . . . [the] alternatives which would not affect the ability to continue the trial, we cannot say that there was manifest necessity for the trial judge’s actions.” 492 F. 2d., at 61. I would affirm.

       Wagner informed the trial judge that he would try the facts of the respondent’s case and Baldwin would make arguments of law.

       Shortly after the arrest of the respondent, someone had telephoned him and said that for $2,000 he would make sure that the ease never came to court. The respondent and FBI agents set up a trap to catch the caller, but the unidentified man got away with the “bait envelope.”
      During the discussion of the incident at the bench, Wagner claimed that, if the description of the man fit Cox, the credibility of the chief Government witness would be placed in doubt. The judge then ordered that the FBI agents be called to determine if the person taking the envelope resembled Cox. When they arrived, Wagner admitted that he had never seen or talked to the agents.
      The FBI agents later informed the judge in camera that the person who picked up the “bait envelope” containing, the fake money bore no resemblance to Agent Cox.

       After the judge excluded Wagner, he examined Meldon about his role in the preparation of the opening statement. Meldon responded that he had conveyed information about the extortion attempt to Wagner but had not represented that Cox was involved and had not worked with Wagner on the opening statement.

       The respondent was a third-year law student at the time of his arrest.

       The Court of Appeals dealt only with the respondent’s double jeopardy claim and did not reach any of his other claims of error. 492 F. 2d 53, 54.

       The Court of Appeals held that the trial judge failed to consider adequate alternatives available to deal with Wagner’s conduct. Among the alternatives the court suggested were a warning that he would be cited for contempt if the practices continued, an actual citation for contempt, filing of a complaint with the grievance committee of the state bar, and taking action to prevent him from practicing again in the United States District Court for the Northern District of Florida. Id., at 60-61.

       The court’s en banc per curiam opinion employed reasoning similar to that of the panel majority. See n. 10, infra.

       The Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the States through the Fourteenth Amendment in Benton v. Maryland, 395 U. S. 784.

       See United States v. Tateo, 377 U. S. 463, 467: “If Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him.” (Emphasis in original.)

       The brief per curiam, opinion of the Court of Appeals en banc concluded:
      “In order for a defendant’s motion for a mistrial to constitute a bar to a later plea of double jeopardy, some choice to proceed or start over must remain with the defendant at the time his motion is made. The dicta from United States v. Jorn . . . does not encompass the extraordinary circumstances of the present case, in which judicial error alone, rather than defendant’s exercise of any option to stop or go forward, took away his ‘valued right to have his trial completed by a particular tribunal.’ ” 504 F. 2d 854-855 (footnote omitted).

       The respondent characterizes a defendant’s mistrial motion as a waiver of “his right not to be placed twice in jeopardy” and argues that to be valid the waiver must meet the knowing, intelligent, and voluntary standard set forth in Johnson v. Zerbst, 304 U. S. 458. This approach erroneously treats the defendant’s interest in going forward before the first jury as a constitutional right comparable to the right to counsel. It fails to recognize that the protection against the burden of multiple prosecutions underlying the constitutional prohibition against double jeopardy may be served by a mistrial declaration and the concomitant relinquishment of the opportunity to obtain a verdict from the first jury. This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right. See Breed v. Jones, 421 U. S. 519, 534; United States v. Wilson, 420 U. S. 332, 343-344, n. 11; United States v. Jorn, 400 U. S. 470, 484-485, n. 11 (plurality opinion); United States v. Tateo, 377 U. S., at 466.

       As the dissenting judge on the original Court of Appeals panel noted, the court’s decision would “give rise to much reluctance in granting mistrials” because “[t]he trial courts will understand that society will be better served by completing a trial, even after clear error has arisen and the defendant seeks the mistrial, than the alternative of a mistrial and the possible bar of double jeopardy based on the error.” 492 F. 2d, at 63 (Bell, J., dissenting).

       This Court’s decisions permitting retrials after convictions have been set aside at the defendant’s behest clearly indicate “that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.” United States v.
        Jorn, supra, at 484. See United States v. Tateo, supra, at 466; cf. Wade v. Hunter, 336 U. S. 684, 688-689.

       The record indicates that the judge expected the trial to continue with Meldon representing the respondent in Wagner’s absence. The judge knew that Meldon was an attorney of record who had represented the respondent from the outset of the case. It was not until after Wagner was excluded that the trial judge learned that the respondent would not permit Meldon to represent him.

       A bar association conscious of its public obligations would sua sponte call to account an attorney guilty of the misconduct shown here. See Report of American Bar Association Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 60-66 (Final Draft 1970) ; American Bar Association Project on Standards for Criminal Justice, Administration of Criminal Justice — The Defense Function, § 7.4, p. 131 (1974 Compilation).


source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Blackmun,

license: Public Domain

text:
    COMMISSIONER OF INTERNAL REVENUE v. SHAPIRO et ux.
    No. 74-744.
    Argued November 5, 1975
    Decided March 8, 1976

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, and Powell, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 634. Stevens, J., took no part in the consideration or decision of the case.

      Acting Deputy Assistant Attorney General Baum argued the cause for petitioner. On the brief were Solicitor General Bork, Assistant Attorney General Crampton, Stuart A. Smith, and Ernest J. Brown.

      Nathan Lewin argued the cause for respondents. With him on the brief were Herbert J. Miller, Jr., and Martin D. Minsker.

   Mr. Justice White

delivered the opinion of the Court.

This case presents questions relating to the scope of the Internal Revenue Code’s Anti-Injunction Act, 26 U. S. C. § 7421 (a), in the context of a summary seizure of a taxpayer’s assets pursuant to a jeopardy assessment. §§ 6861, 6331, 6213.

I

Normally, the Internal Revenue Service may not “assess” a tax or collect it, by levying on or otherwise seizing a taxpayer’s assets, until the taxpayer has had an opportunity to exhaust his administrative remedies, which include an opportunity to litigate his tax liability fully in the Tax Court, 26 U. S. C. §§ 6212, 6213; and if the Internal Revenue Service does attempt to collect the tax by levy or otherwise, before such exhaustion of remedies in violation of § 6213, the collection is not protected by the Anti-Injunction Act and may be restrained by a United States district court at the instance of the taxpayer. §§ 6213 (a), 7421 (a). The rule is otherwise when the Commissioner proceeds under § 6861 and finds that collection of a tax due and owing from a taxpayer will be “jeopardized by delay” in collection. In such a case, the Commissioner may immediately assess the tax and, upon “notice and demand ... for payment thereof” followed by the taxpayer’s “failure or refusal to pay such tax,” may immediately levy on the taxpayer’s assets. §§ 6861, 6331. When the Commissioner follows this procedure, the Anti-Injunction Act applies in full force and “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” § 7421 (a).

In this case, the Commissioner found, on December 6, 1973, that the imminent departure of respondent Samuel Shapiro (hereinafter Shapiro or respondent) for Israel and the probable departure with him of the assets in his New York bank accounts and safe-deposit boxes jeopardized the collection of income taxes claimed to be due and owing by him for the tax years 1970 and 1971. Accordingly, he assessed income taxes against respondent in the amount of $92,726.41 for the tax years 1970 and 1971. On the same day, he filed liens against respondent and served notices of levy upon various banks in New York State in which respondent maintained accounts or had safe-deposit boxes. These notices of levy effectively froze the money in the accounts — totaling about $35,-000 — and the contents of the safe-deposit boxes.

At that time respondent Shapiro was under a final order of extradition to Israel, for trial on criminal fra”d charges, issued by the United States District Court for the Southern District of New York, and was scheduled to leave for Israel on December 9, 1973 — three days later. That date had been set as a result of an agreement between Shapiro and the State of Israel pursuant to which he had withdrawn a petition for writ of certiorari seeking review by this Court of the affirmance of the extradition order by the Court of Appeals for the Second Circuit, Shapiro v. Ferrandina, 478 F. 2d 894 (1973), and the State of Israel had agreed to grant him a speedy trial when he arrived in Israel and to release him on $60,000 bail pending such trial.

Upon learning of the notices of levy, respondent obtained the consent of the State of Israel to postpone his extradition date until December 16, 1973; and then on December 13, 1973, he initiated the instant lawsuit. Claiming that he owed no taxes; that he could not litigate the issue with the Internal Revenue Service while in jail in Israel; that he would be in jail in Israel, unless he could use the frozen $35,000 as bail money; and that the Internal Revenue Service had deliberately and in bad faith waited until December 6, 1973, before filing its notices of levy precisely in order to place him in this predicament, respondent requested in his complaint an order enjoining his extradition until he had an opportunity to litigate the question whether he owed the Internal Revenue Service any taxes or, in the alternative, an order directing the Internal Revenue Service to lift the notices of levy.

Over the Government’s claim that the court lacked jurisdiction over the case by reason of the Anti-Injunction Act and because the timing of an extradition is a matter within the exclusive jurisdiction of the Executive Branch, the District Court granted a temporary restraining order against extradition on December 13, 1973, and set argument on the motion for a preliminary injunction for December 19, 1973, later postponed until December 21, 1973. Interrogatories were then served on the Government inquiring, inter alia, into the basis for the assessments. In partial, expedited, response to the interrogatories, the Government stated on December 19, 1973, that respondent was not yet entitled to know the basis for the assessments. Then on December 21, 1973, the Commissioner served counsel for respondent with supplements to the responses to the interrogatories to which were appended notices of deficiency, see 26 U. S. C. § 6212. The notices of deficiency disclosed that the 1970 assessment was based on unexplained cash bank deposits of $18,000 and that the 1971 assessment was based on income in the amount of $137,280 derived from respondent’s alleged activities as a dealer in narcotics. On that date, the District Court dissolved the temporary restraining order and granted the Commissioner’s motion to dismiss the complaint. The court concluded that the Anti-Injunction Act withdrew its jurisdiction to order the levies to be lifted, and that the timing of the extradition, validly ordered by the United States District Court for the Southern District of New York under a treaty with Israel, was a matter within the exclusive jurisdiction of the State Department.

On December 26, 1973, after respondent had filed a notice of appeal, the Court of Appeals for the District of Columbia Circuit stayed the extradition pending resolution of that appeal. The stay was lifted by the Court of Appeals on February 12, 1974. On May 15, 1974, the Court of Appeals affirmed the District Court's holding that it had no jurisdiction over the extradition order and respondent was extradited several days thereafter. The Court of Appeals, however, disagreed with the District Court that it had no jurisdiction to consider the claim for relief from the levies and remanded for further proceedings. Shapiro v. Secretary of State, 162 U. S. App. D. C. 391, 499 F. 2d 527 (1974).

The Court of Appeals held that an unresolved fact issue existed on the question whether this case falls within the narrow exception to the Anti-Injunction Act formulated in this Court’s decision in Enochs v. Williams Packing Co., 370 U. S. 1 (1962). As the court understood the Williams Packing decision, the Anti-Injunction Act does not deprive the District Court of jurisdiction to restrain collection of a tax, if (1) the taxpayer shows “extraordinary circumstances causing irreparable harm” for which he has no “adequate remedy at law,” and (2) it is apparent that, under the most liberal view of the law and the facts, the United States “ ‘cannot establish its claim.’ ” 162 U. S. App. D. C., at 396, 499 F. 2d, at 632. The court found that Shapiro had satisfied the first test: the money frozen in his New York banks was to be used as bail money in Israel, and without it Shapiro would be incarcerated. Accordingly, his remedy at law — i. e., his ability later to contest the validity of the assessment in the Tax Court or in a suit for a refund — was inadequate. As for the second test, the court concluded that the District Court should not have dismissed the complaint without further inquiry into the factual foundation for the jeopardy assessment and that further proceedings were necessary before finally determining whether upon viewing the law and the facts most favorably to the Government there was “no factual foundation” for the Government’s claim that Shapiro was a tax-delinquent narcotics dealer during 1971 and thus no basis for the assessment. Accordingly, the court remanded in order to “allow the District Court... to develop a record” and to determine in light of it whether the asserted deficiency was “so arbitrary and excessive” as to be an exaction in the guise of a tax. Id., at 399, 499 F. 2d, at 535.

II

The Government argues that the order of the Court of Appeals was erroneous because it placed a burden on the Government to prove a factual basis for its assessment instead of requiring the taxpayer to prove that “under no circumstances could the Government ultimately prevail.” Enochs v. Williams Packing Co., 370 U. S., at 7. The Government argues further that since the taxpayer had and still has wholly failed to prove or even plead specific facts establishing that the Government can under no circumstances prevail, the Court of Appeals should have affirmed the District Court’s initial dismissal and its decision to the contrary should be reversed.

Respondent argues on the other hand that unless the Government has some obligation to disclose the factual basis for its assessments, either in response to a discovery request or on direct order of the court, the exception to the Anti-In junction Act provided in Enochs v. Williams Packing Co., su-pra, is meaningless. The taxpayer can never know, unless the Government tells him, what the basis for the assessment is and thus can never show that the Government will certainly be unable to prevail. We agree with Shapiro.

In Enochs v. Williams Packing Co., supra, the Court held that an injunction may be obtained against the collection of any tax if (1) it is “clear that under no circumstances could the Government ultimately prevail” and (2) “equity jurisdiction” otherwise exists, i. e., the taxpayer shows that he would otherwise suffer irreparable injury. 370 U. S., at 7. The Court also said that “the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of the suit,” ibid. The Government’s claim that the Court of Appeals placed on it the burden of justifying its assessment and thereby erroneously applied the Williams Packing rule is wrong. Williams Packing did not hold that the taxpayer’s burden of persuading the District Court that the Government will under no circumstances prevail must be accomplished without any disclosure of information by the Government. It says instead that the question will be resolved on the basis of the information available to the Government at the time of the suit. Since it is absolutely impossible to determine what information is available to the Government at the time of the suit, unless the Government discloses such information in the District Court pursuant to appropriate procedures, it is obvious that the Court in Williams Packing intended some disclosure by the Government. Although the Government casts its argument in terms of “burden of proof,” the Court of Appeals did not place any technical burden of producing evidence on the Government and it would appear to matter little whether the Government discloses such information because it is said to have the burden of producing evidence on the question or whether it discloses such evidence by responding to a discovery motion made or interrogatories served by the taxpayer— in which case the burden of producing evidence may be said to have rested with the taxpayer. Thus the Court of Appeals cannot be said to have erred in declining to specify the precise manner in which the relevant facts would be revealed on remand. In either event, under Williams Packing the relevant facts are those in the Government’s possession and they must somehow be obtainable from the Government.

The Government argues, however, that unless the taxpayer is required to plead specific facts which, if true, would establish that the Government cannot ultimately prevail, then the Anti-Injunction Act is eviscerated. Any taxpayer can allege in conclusory fashion that he owes no tax and, therefore, under the Court of Appeals’ decision, any taxpayer may in effect force the Government to justify its assessment in a United States District Court — thereby interfering with a “collateral objective” of the Act, Enochs v. Williams Packing Co., supra, at 7-8, i. e., to protect the collector from tax litigation outside of the statutory scheme provided by Congress. As the Government’s argument itself implicitly concedes, the primary purpose of the Act is not interfered with, since the collection of taxes will not be restrained unless the District Court is persuaded from the evidence eventually adduced that the Government will under no circumstances prevail. We do not understand the Court of Appeals to have departed from this standard enunciated in Williams Packing, or to have removed from the taxpayer the ultimate burden, which that decision appears to place on him, of persuading the District Court that it has been met. Moreover, the “collateral objective” of the Act is undercut no more than was contemplated by Williams Packing. The taxpayer himself must still plead and prove facts establishing that his remedy in the Tax Court or in a refund suit is inadequate to repair any injury that might be caused by an erroneous assessment or collection of an asserted tax liability. Even then, the Government is not required to litigate fully the taxpayer’s liability outside the statutory scheme provided by Congress. It is required simply to litigate the question whether its assessment has a basis in fact.

Our conclusion that the Court of Appeals correctly reversed the judgment of the District Court and remanded for further proceedings is fortified by the fact that construing the Act to permit the Government to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious constitutional problems in cases, such as this one, where it is asserted that seizure of assets pursuant to a jeopardy assessment is causing irreparable injury. This Court has recently and repeatedly held that, at least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made. Here the Government seized respondent’s property and contends that it has absolutely no obligation to prove that the seizure has any basis in fact no matter how severe or irreparable the injury to the taxpayer and no matter how inadequate his eventual remedy in the Tax Court.

It is true that in Phillips v. Commissioner, 283 U. S. 589 (1931), this Court sustained against constitutional challenge the statutory scheme created by Congress for the litigation of tax disputes and in so doing referred both to the jeopardy assessment provisions and the Anti-Injunction Act, id., at 596 n. 6. However, the Phillips case itself did not involve a jeopardy assessment and the taxpayer’s assets could not have been taken or frozen in that case until he had either had, or waived his right to, a full and final adjudication of his tax liability before the Tax Court (then the Board of Tax Appeals). The taxpayer’s claim in that case was simply that a statutory scheme which would permit the tax to be assessed and collected prior to any judicial determination of his liability — by way of a refund suit or review of the Board of Tax Appeals’ decision — was unconstitutional. Thus, insofar as Phillips may be said to have sustained the constitutionality of the Anti-Injunction Act, as applied to a jeopardy assessment and consequent levy on a taxpayer’s assets without prompt opportunity for final resolution of the question of his liability by the Tax Court, it did so only by way of dicta. The dicta were carefully expressed. The Court said:

“Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained.
“Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate. . . Id., at 595, 596-597. (Emphasis supplied.)

Accordingly, neither the holding nor the dicta in Phillips support the proposition that the tax collector may con-' stitutionally seize a taxpayer’s assets without showing some basis for the seizure under circumstances in which the seizure will injure the taxpayer in a way that cannot be adequately remedied by a Tax Court judgment in his favor. Instead it would appear to be entirely consistent with our more recent holdings.

In any event we are satisfied that under the exception to the Anti-Injunction Act described in the Williams Packing case this case may be resolved by reference to that Act alone. At the time the District Court dismissed the complaint, the Government had done little more than assert that respondent owed taxes in an amount greater than the value of the property levied — it had alleged that respondent had made an unexplained bank deposit of $18,000 in 1970 and, in a wholly conclusory fashion, that he had received $137,-280 in income from selling hashish. Before the taxpayer had an opportunity to inquire into the factual basis for this conclusory allegation, it was not possible to tell whether the Government had any chance of ultimately prevailing. Accordingly, the Court of Appeals properly concluded that the Anti-Injunction Act did not require dismissal of the taxpayer’s complaint.

Moreover, we are satisfied that the standard required by the Anti-Injunction Act is at least as favorable to the taxpayer as that required by the Constitution; and that the standard to be applied by the District Court will therefore not be affected by the resolution of the constitutional issue. The Government may defeat a claim by the taxpayer that its assessment has no basis in fact — and therefore render applicable the Anti-Injunction Act — without resort to oral testimony and cross-examination. Affidavits are sufficient so long as they disclose basic facts from which it appears that the Government may prevail. The Constitution does not invariably require more, Gerstein v. Pugh, 420 U. S. 103 (1975); Mathews v. Eldridge, 424 U. S. 319 (1976), and we would not hold that it does where collection of the revenues is involved.

Finally, it seems apparent that if the facts do not even disclose “probable cause,” North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601, 607 (1975); Gerstein v. Pugh, supra, to support the assessment, the Government would certainly be unable to prevail at trial. Thus the Williams Packing standard is consistent with the applicable constitutional standard.

We point out also that a preliminary issue would appear to require resolution on remand. Irreparable injury was, of course, quite properly found by the Court of Appeals. At the time of that court’s decision, it appeared that respondent Shapiro had been deprived by the levies of the money needed to post bail in Israel and thereby avoid incarceration. However, it would appear that the basis for the Court of Appeals’ finding of irreparable injury has since disappeared. Thus, the District Court’s preliminary task on remand will be to determine whether this is so and, if so, whether respondent can establish some other sort of irreparable injury flowing from the levies.

The judgment of the Court of Appeals is

Affirmed.

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

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins, dissenting.

I would have thought that when the Commissioner of Internal Revenue, on December 21, 1973, provided respondent Samuel Shapiro with supplements to the responses to the interrogatories, at that time, if not before, he surely satisfied and met all that was required to bring the Anti-Injunction Act, 26 U. S. C. § 7421 (a), and the principle of Enochs v. Williams Packing Co., 370 U. S. 1 (1962), into full and effective application. It would follow that the District Court’s dismissal of the complaint at that point was entirely proper and should have been affirmed.

Given, however, the result the Court very recently reached in Laing v. United States, 423 U. S. 161 (1976), the decision today, shored up by what seem to me to be the inapposite cases cited, ante, at 629-630, n. 11, is not unexpected. I am far from certain that the Court is correct, and I am confused by the Court’s failure even to cite Bob Jones University v. Simon, 416 U. S. 725 (1974), and Commissioner v. “Americans United,” Inc., 416 U. S. 752 (1974), two cases heavily relied upon by the Commissioner here and, I think, of some significance. I observe only that, with Laing and the present decision, the Court now has traveled a long way down the road to the emasculation of the Anti-Injunction Act, and down the companion pathway that leads to the blunting of the strict requirements of Williams Packing and, now, of Mr. Justice Brandeis’ opinion for a unanimous Court in Phillips v. Commissioner, 283 U. S. 589 (1931). The Court has taken this Laing-Shapiro tack, I suspect, as a response to what it deems to be administrative excesses with respect to suspected narcotics operatives who also are, or should be, taxpayers. Whether all this will prove to be stultifying or embarrassing to the collection of the revenues in a more temperate and untroubled time, I do not know. Perhaps, up to a point, the Congress will come to the rescue.

The Court, ante, at 624-626, n. 9, demonstrates, of course, that the present case is in a most unsatisfactory posture for review here. It is unfortunate that a case so posed occasions the pronouncement of new and, so far as tax collection efforts are concerned, regressive law.

I would reverse the judgment of the Court of Appeals.

       Title 26 U. S. C. § 7421 (a) provides in full:
      “(a) Tax.
      “Except as provided in sections 6212 (a) and (c), 6213 (a), and 7426 (a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”

       Title 26 U. S. C. § 6212 provides in relevant part:
      “(a) In general.
      “If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B or chapter 42, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.”
      Title 26 U. S. C. § 6213 provides in relevant part:
      “(a) Time for filing petition and restriction on assessment.
      “Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421 (a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.”

         Title 26 U. S. C. § 6331 provides in relevant part:
      “(a) Authority of Secretary or delegate.
      “If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401 (d)) of such officer, employee, or elected official. If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
      “(b) Seizure and sale of property.
      “The term 'levy’ as used in this title includes the power of dis-traint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).”
      Title 26 U. S. C. § 6861 provides in relevant part:
      “(a) Authority for Making.
      “If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213 (a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof.
      “(b) Deficiency Letters.
      “If the jeopardy assessment is made before any notice in respect of the tax to which the jeopardy assessment relates has been mailed under section 6212 (a), then the Secretary or his delegate shall mail a notice under such subsection within 60 days after the making of the assessment.”

       The relevant part of the deficiency notice for the year 1970 provided:
      “It is determined that you realized unreported taxable income from unexplained bank deposits at the 1st National City Bank in the amount of $18,000.00.” App. 135.
      The relevant part of the deficiency notice for the year 1971 provided, id., at 136:
      “It is determined that you realized unreported taxable income in the amount of $137,280.00 for the taxable year ended December 31, 1971 from your activities as a dealer in narcotics, computed as follows:
      “Gross income from hashish sales. $381,680.00
      “Less: costs. 244,400.00
      “Net Income. $137,280.00”

       On January 3, 1974, respondent, armed with his deficiency notice, filed in the Tax Court for a redetermination of the deficiency. 26 U. S. C. §6213 (a).

       The extradition issue is therefore no longer in this case.

       The Court of Appeals rejected, on the record before it, and on the authority of Phillips v. Commissioner, 283 U. S. 589 (1931), respondent’s claim that the assessment absent a hearing violated the Due Process Clause. It noted, however, that if respondent could establish on remand that his extradition would prevent him from litigating effectively before the Tax Court, then one of the predicates for the Phillips decision would be lacking. The court also noted, but did not resolve, a factual dispute as to whether the levy was in conformity with the statute. Shapiro had alleged, for the first time on appeal, that no notice had been given to him or demand made of him to pay the taxes at the time the levies were served. Such notice and demand are required by 26 U. S. C. § 6861, compliance with which is necessary under §6213 (a), if the Anti-Injunction Act is to apply. The Commissioner claimed that he had mailed a deficiency notice to Shapiro on December 6, 1973.
      It is clear that a demand has now been made for payment of the tax assessed and that the levies are now in compliance with § 6213. A notice of deficiency was served on Shapiro’s attorney in the District Court on December 21, 1973. The Internal Revenue Service, conceding that it could not be sure whether the original notice of deficiency was mailed before or after the notices of levy were served, served new notices of levy on October 11 and 15, 1974. This moots both the question whether the IRS mailed a notice of deficiency to Shapiro on December 6, 1973, and whether the notice preceded the levies. There can be no question at this point, therefore, that in these respects the levies are in technical compliance with the provisions of § 6861.

       This standard, considered by the Court of Appeals to be consistent with Enochs v. Williams Packing was based on cases decided by other Courts of Appeals, primarily Pizzarello v. United States, 408 F. 2d 579 (CA2 1969), and Lucia v. United States, 474 F. 2d 565 (CA5 1973) (en banc).

       Subsequent to the time of the Court of Appeals’ order and prior to argument of this case before this Court, several things have concededly occurred of arguable relevance to this lawsuit. First, respondent Shapiro has been extradited, the State of Israel has reduced the amount of his bail and he has been able to meet it. Accordingly, he is not — as the Court of Appeals assumed he would be — incarcerated as a result of the fact that the levies have put the money in the New York banks beyond his reach. Second, the District Court interpreted the Court of Appeals’ order in this case to require the Government to come forward with proof sufficient to establish a factual foundation for the tax assessment and to negative a finding that the assessment is "entirely excessive, arbitrary, capricious, and without factual foundation.” The Government then made an effort at compliance with the District Court’s order, consisting of the filing of an affidavit by the revenue agent who investigated respondent’s income tax liabilities. The affidavit states that the basis for the assessments is as follows:
      “a. There was no record that Samuel Shapiro had filed an income tax return for 1970.
      “b. That Samuel Shapiro had filed an income tax return for 1971 reporting no tax liability based upon $1,600 in adjusted gross income, consisting of $2,600 miscellaneous income from private tutoring and net short-term losses from commodity transactions of $1,450 (limited to $1,000 in computing adjusted gross income).
      “c. That deposits were credited to two accounts in the name of Samuel Shapiro at the First National City Bank, New York, Nos.: 04993564 and 05008773, in the amounts of $18,000 in 1970 and $36,-735 in 1971.
      “d. That . . . Samuel Shapiro paid in excess of $3,000 in currency for the purchase of an automobile.
      “e. That information available to the Internal Revenue Service indicated that early in 1973 Samuel Shapiro paid over $40,000 for a home purchased for over $60,000.
      “f. That information supplied to the Internal Revenue Service indicated that Samuel Shapiro had been smuggling into the United States substantial amounts of an illegal substance, hashish, every six days from Israel, presumably for resale within the United States, and also supported a conclusion that Samuel Shapiro was dealing in hashish, during 1971.
      “g. That included in the 1971 bank deposits referred to in subpara-graph (c) above, were money transfers from an individual since convicted of selling hashish, who stated that the transfers were for hashish supplied to him by Samuel Shapiro as follows:
      “April 19,1971. $2,000
      “April 23,1971. 2,300
      “May 6, 1971. 2,000
      “May 11, 1971. 1,500
      “June 8, 1971. 1,500
      “August 18, 1971. 5,600
      “h. That information available to the Internal Revenue Service indicated that the known practice in hashish trafficking was to deal in full kilos (kilograms), equal to 2.2 pounds; that during 1971 the retail price of hashish was $1,360 to $1,980 per pound, or $2,992 to $4,356 per kilo; and that the wholesale cost to a dealer would approximate $2,350 per kilo; and that the common practice in hashish dealing was to receive payment in two parts — the first for cost and the second for profit.
      "i. That on the basis of the information set forth in subparagraphs g. and h. above, [the revenue agent] concluded that during 1971 Samuel Shapiro was dealing in at least 2 kilos of hashish per week, and that his taxable profit therefrom was $137,280, computed as follows:
      “Selling price. $7,340
      “Cost . 4,700
      “Weekly profit. 2,640
      “1971 profit (52 weeks).$137,280

        “j. That unexplained deposits of $18,000 during 1970 should be deemed to be taxable income.”
      At a hearing held by the District Court on November 12, 1974, respondent submitted two affidavits (which had been filed in the Tax Court) denying that he was or ever had been a dealer in narcotics. Respondent’s affidavits further stated that his 1971 income tax return was correct. Respondent also submitted an affidavit of Rachel Laub, a resident of Switzerland, which stated that at respondent’s request in 1970, she held for him in safekeeping $50,000 in cash and approximately 18 to 20 kilos of gold bars. That affidavit further stated that at respondent’s request, she transmitted the cash to him in 1971, and the proceeds of the sale of the gold bars ($32,000 and $35,000) in 1971 and 1972, respectively. Finally, the District Judge has tentatively ruled that the Government must, if the court is to deny injunctive relief, submit its informant for in camera examination by the court. Following the Court’s granting of the Government’s petition for a writ of certiorari, 420 U. S. 923 (1975), no further proceedings have taken place below.
      The proceedings before the District Court on remand and the other events just described are, of course, not before us at this time. These proceedings occurred after the decision of the Court of Appeals which we review. However, the parties appear to agree that these events have occurred as described, and we mention them because they are relevant to the question of what proceedings must eventually be conducted by the District Court following our decision in this case.

       We believe that it is consistent with Williams Packing to place the burden of producing evidence with the taxpayer, and to require, if the Government insists, that facts in its sole possession be obtained through discovery. However, nothing we say here should prevent the Government from voluntarily and immediately disclosing the basis for its assessment, which, if sufficient, would terminate discovery proceedings and justify judgment for the Government.

        Goldberg v. Kelly, 397 U. S. 254, 264 (1970) (temporary deprivation of welfare payments may deprive recipient of “the very means by which to live while he waits”); Sniadach v. Family Finance Corp., 395 U. S. 337, 341-342 (1969) (temporary deprivation of wages may “drive a wage-earning family to the wall”); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601, 608 (1975) (“probability of irreparable injury” sufficient to warrant preseizure probable-validity hearing); see also Gerstein v. Pugh, 420 U. S. 103 (1975) (incarceration must be preceded by probable-cause finding or promptly followed by probable-cause hearing); cf. Regional Rail Reorganization Act Cases, 419 U. S. 102, 156 (1974) (no probable-cause hearing required where complainant eventually will be “made whole” for any inadequacy in compensation for confiscated property).

       We have often noted that, in resolving a claimed violation of procedural due process, a careful weighing of the respective interests is required, Goss v. Lopez, 419 U. S. 565, 579 (1975); and we have noted that the Government’s interest in collecting the revenues is an important one, Fuentes v. Shevin, 407 U. S. 67, 92 (1972). This interest is clearly sufficient to justify seizure of a taxpayer’s assets without a preseizure hearing, Fuentes v. Shevin, supra, and to remove any need to subject the Commissioner to the burden of an inquiry into the basis for his assessment absent factual allegations of irreparable injury by the taxpayer. Phillips v. Commissioner, 283 U. S. 589, 595-597 (1931). However, it is very doubtful that the need to collect the revenues is a sufficient reason to justify seizure causing irreparable injury without a prompt post-seizure inquiry of any kind into the Commissioner’s basis for his claim.
      The taxpayer has no right to start a proceeding before the Tax Court for 60 days following a jeopardy seizure: the IRS may under the statute wait 60 days before it issues the deficiency notice which gives the taxpayer his “ticket to the Tax Court.” 26 U. S. C. § 6861. The record does not indicate how quickly a hearing on the merits can be obtained there. Preliminary relief is not there available. Nothing we hold today, of course, would prevent the Government from providing an administrative or other forum outside the Art. Ill judicial system for whatever preliminary inquiry is to be made as to the basis for a jeopardy assessment and levy.

       The taxpayer also challenged unsuccessfully the provision requiring a court of appeals to give deference to a fact determination by the Board of Tax Appeals on review of the Board’s decision.

       We do not decide whether the allegation of an $18,000 unexplained bank deposit is insufficient to establish income in that amount — for the purposes of the Williams Packing test — for the year 1970. The levies, being greatly in excess of the tax due for 1970 in any event, may not be sustained unless the allegations with respect to respondent’s tax liability for 1971 are sufficient.

       We note that it has now been over two years since respondent filed his petition before the Tax Court, and so far as we are informed, there has been no final determination by that court. It may be that for some reason it has been impossible — despite the respondent’s best efforts — to obtain a decision by the Tax Court. However, it is also possible that the taxpayer has not vigorously sought such a determination, and has chosen instead to devote most of his energies litigating in the federal courts. If, on remand, the District Court concludes that the absence of a remedy at law at this time is due to respondent’s failure to pursue that remedy, then equity will not intervene and the complaint should be dismissed. The inadequacy of his legal remedy would then be due to his own choice not to pursue it.


author: Per Curiam. Mr. Chief Justice Burger,

text:
    EAST CARROLL PARISH SCHOOL BOARD et al. v. MARSHALL
    No. 73-861.
    Argued January 21, 1976
    Decided March 8, 1976

      John F. Ward, Jr., argued the cause and filed a brief for petitioners.

      Stanley A. Hatpin, Jr., argued the cause for respondent. With him on the brief were Jack Greenberg and Eric Schnapper.

      Brian K. Landsberg argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, John C. Hoyle, and Jessica Dunsay Silver.

        Paul R. Dimond and William E. Caldwell filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae.

   Per Curiam.

The sole issue raised by this case is how compliance with the one-man, one-vote principle should be achieved in a parish (county) that is admittedly malapportioned.

Plaintiff Zimmer, a white resident of East Carroll Parish, La., brought suit in 1968 alleging that population disparities among the wards of the parish had unconstitutionally denied him the right to cast an effective vote in elections for members of the police jury and the school board. See Avery v. Midland County, 390 U. S. 474 (1968). After a hearing the District Court agreed that the wards were unevenly apportioned and adopted a reapportionment plan suggested by the East Carroll police jury calling for the at-large election of members of both the police jury and the school board. The 1969 and 1970 elections were held under this plan.

The proceedings were renewed in 1971 after the District Court, apparently sua sponte, instructed the East Carroll police jury and school board to file reapportionment plans revised in accordance with the 1970 census. In response, the jury and board resubmitted the at-large plan. Respondent Marshall was permitted to intervene on behalf of himself and all other black voters in East Carroll. Following a hearing the District Court again approved the multimember arrangement. The inter-venor appealed, contending that at-large elections would tend to dilute the black vote in violation of the Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965.

Over a dissent, a panel of the Court of Appeals affirmed, but on rehearing en banc, the court reversed. It found clearly erroneous the District Court’s ruling that at-large elections would not diminish the black voting strength of East Carroll Parish. Relying upon White v. Regester, 412 U. S. 755 (1973), it seemingly held that multimember districts were unconstitutional, unless their use would afford a minority greater opportunity for political participation, or unless the use of single-member districts would infringe protected rights.

We granted certiorari, 422 U. S. 1055 (1975), and now affirm the judgment below, but without approval of the constitutional views expressed by the Court of Appeals. See Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring).

The District Court, in adopting the multimember, at-large reapportionment plan, was silent as to the relative merits of a single-member arrangement. And the Court of Appeals, inexplicably in our view, declined to consider whether the District Court erred under Connor v. Johnson, 402 U. S. 690 (1971), in endorsing a multimember plan, resting, its decision instead upon constitutional grounds. We have frequently reaffirmed the rule that when United States district courts are put to the task of fashioning reapportionment plans to supplant con-cededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances. Chapman v. Meier, 420 U. S. 1, 17-19 (1976); Mahan v. Howell, 410 U. S. 315, 333 (1973); Connor v. Williams, 404 U. S. 549, 551 (1972); Connor v. Johnson, supra, at 692. As the en banc opinion of the Court of Appeals amply demonstrates, no special circumstances here dictate the use of multimember districts. Thus, we hold that in shaping remedial relief the District Court abused its discretion in not initially ordering a single-member reapportionment plan.

On this basis, the judgment is

Affirmed.

Mr. Chief Justice Burger,

concurring.

I consider it unnecessary to reach the question discussed, ante, at 638-639, n. 6. It was, as the Court observes in n. 6, “not raised by the petitioners, nor did respondent file a cross-petition.” The scope of § 5 of the Voting Rights Act is an important matter, and I would not undertake to express any view on what the Court discusses by way of dicta in n. 6.

       In Louisiana, the police jury is the governing body of the parish. Its authority includes construction and repair of roads, levying taxes to defray parish expenses, providing for the public health, and performing other duties related to public health and welfare. La. Rev. Stat. Ann. §33:1236 (1950 and Supp. 1975).

       Prior to 1968, Louisiana law prohibited at-large elections of members of police juries and school boards. In July 1968, the Governor of Louisiana approved enabling legislation permitting the at-large election of parish police juries and school boards. La. Laws 1968, Act No. 445, codified at La. Rev. Stat. Ann. §§33:1221, 33:1224 (Supp. 1975); La. Laws 1968, Act No. 561, codified at La. Rev. Stat. Ann. §§17:71.1-17:71.6 (Supp. 1975).
      Both Acts were submitted to the United States Attorney General pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, and both were rejected because of their discriminatory effect on Negro voters. See letters, June 26, 1969, and Sept. 10, 1969, from Jerris Leonard, Assistant Attorney General, Civil Rights Division, to Jack P. F. Gremillion, Attorney General of Louisiana. Indeed, East Carroll Parish was cited as exemplifying the dilution in black ballot strength that at-large voting may cause. Letter of Sept. 10, 1969.

       The original plaintiff, Zimmer, was allowed to withdraw from the case.

        Zimmer v. McKeithen, 467 F. 2d 1381 (CA5 1972).
      During pendency of the appeal in the court below, the District Court purported to withdraw its order approving the at-large plan and to substitute in its stead a complex redistricting plan submitted by intervenor Marshall. The Court of Appeals vacated the order on the ground that when the appeal was filed, the District Court lost jurisdiction over the case. Id., at 1382.

        Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973).

       The Government has filed an amicus brief, in which it argues that the preclearance procedures of § 5 of the Voting Rights Act of 1965, must be complied with prior to adoption by a federal district court of a reapportionment plan submitted to it on behalf of a local legislative body that is covered by the Act. This issue was not raised by the petitioners nor did respondent file a cross-petition. In any event, we agree with the Court of Appeals, Zimmer v. McKeithen, 467 F. 2d, at 1383; Zimmer v. McKeithen, 485 F. 2d, at 1302 n. 9, that court-ordered plans resulting from equitable jurisdiction over adversary proceedings are not controlled by § 5. Had the East Carroll police jury reapportioned itself on its own authority, clearance under § 5 of the Voting Rights Act would clearly have been required. Connor v. Waller, 421 U. S. 656 (1975). However, in submitting the plan to the District Court, the jury did not purport to reapportion itself in accordance with the 1968 enabling legislation, see n. 2, supra, and statutes cited therein, which permitted police juries and school boards to adopt at-large elections. App. 56. Moreover, since the Louisiana enabling legislation was opposed by the Attorney General of the United States under § 5 of the Voting Rights Act, the jury did not have the authority to reapportion itself. See n. 2, supra; Tr. of Oral Arg. 13-14, 31-32, 43-44. Since the reapportionment scheme was submitted and adopted pursuant to court order, the preclearance procedures of § 5 do not apply. Connor v. Johnson, 402 U. S. 690, 691 (1971).


author: Per Curiam. Mr. Justice Stevens,

text:
    BUCOLO et al. v. ADKINS, CHIEF JUSTICE, et al.
    No. 75-369.
    Decided March 8, 1976
    See 316 So. 2d 551.
   Per Curiam.

Petitioners were convicted in the Circuit Court of Palm Beach County, Fla., of publishing certain comic strips and pictures in violation of the Florida obscenity statute. On appeal, the Supreme Court of Florida affirmed. In April 1975, we granted certiorari and summarily reversed the judgment of the Supreme Court of Florida, citing Jenkins v. Georgia, 418 U. S. 153 (1974), and Kois v. Wisconsin, 408 U. S. 229 (1972).

The Supreme Court of Florida sent the case to the trial court “for further proceedings in which the standards established in Miller v. California can be applied.” Petitioners thereupon applied to us for a writ of mandamus directing respondents “to vacate and expunge from the record” the opinion and mandate on remand of the Supreme Court of Florida. They complained that, in subjecting them to a second trial, the state court ignored this Court’s determination that the published materials were not obscene.

On November 4, 1975, while petitioners’ request for mandamus was pending before us, the State Attorney of Palm Beach County, at the. direction of the State’s Attorney General, nolle prossed the charges. Florida follows the common law with respect to nolle prosequi and vests in its Attorney General exclusive discretion to determine that the State is “unwilling to prosecute.” See 9 Fla. Jur., Criminal Law §378 (1972). Nolle prosequi, if entered before jeopardy attaches, neither operates as an acquittal nor prevents further prosecution of the offense. See id., § 438; Smith v. State, 135 Fla. 835, 186 So. 203 (1939). We are informed by the Florida Attorney General that, in the instant case, Florida’s speedy-trial rule precludes renewed prosecution of petitioners. Therefore, the threatened injury which impelled petitioners to invoke our extraordinary jurisdiction would appear to be obviated. But, petitioners take the position that the entry of the nolle prosequi does not eliminate the necessity that we act to insure that the Supreme Court of Florida will conform its decision to the determination reached in this Court.

Petitioners further contend that in these circumstances the prosecutor’s exercise of discretionary authority to forgo further prosecution serves to deprive them of the exoneration to which this Court’s reversal otherwise entitles them. They find support for this claim in the language of the nolle prosequi itself, which is, presumably, now a part of the permanent trial court record in this case. That document erroneously suggests that further proceedings applying Miller standards were ordered by this Court. It also suggests that the State had become unwilling to prosecute solely as a result of the passage of time. We agree with petitioners that nothing in the state-court record, as it now stands, recognizes that the State was foreclosed by this Court’s decision from seeking to convict petitioners of obscenity violations. We are unable to dismiss as insignificant petitioners’ plaint that the judgment of the Supreme Court of Florida, as it now stands, obscures this Court’s favorable adjudication on the merits — an adjudication which requires full recognition by the state courts in order effectively to dispel any opprobrium resulting from the accusation of obscenity.

Observation of the disposition of this case following our summary reversal reveals that the Supreme Court of Florida has attributed to this Court a decision which it never made. Further proceedings pursuant to the information charging petitioners with violating Florida’s obscenity statute were clearly foreclosed. In that circumstance, the state court’s failure to give effect to that judgment was not cured by the intervening exercise of prose-cutorial discretion. Accordingly, the motion for leave to file a petition for a writ of mandamus ordering the Supreme Court of Florida to conform its decision to our mandate is granted. Assuming as we do that the Supreme Court of Florida will conform to the disposition we now make, we do not now issue the writ of mandamus. Deen v. Hickman, 358 U. S. 57 (1958).

Mr. Justice Stevens,

with whom Mr. Justice Rehnquist joins,

dissenting.

In Deen v. Hickman, 358 U. S. 57, it was necessary to require the Texas Supreme Court to conform its decision to our mandate in order to make sure that further proceedings in the underlying litigation would be properly conducted. In this case no matter what we do, there will be no further proceedings in the underlying litigation. The circumstances recited in the opinion of the Court, therefore, would not justify the issuance of an extraordinary writ. Since I would not vote in favor of such a writ, I would also deny the motion for leave to file.

       Fla. Stat. Ann. § 847.011 (Supp. 1975).

        Bucolo v. State, 303 So. 2d 329 (1974).

        Bucolo v. Florida, 421 U. S. 927.

      4 413 U. S. 15 (1973).

        Bucolo v. State, 316 So. 2d 551 (1975).

       In his response to petitioners’ request for mandamus, the Attorney General of Florida concedes that “there is no question but that this Court in reversing [petitioners’ conviction on April 21, 1975, by referring to [Jenkins and Kois], conclusively determined that the materials disseminated by petitioners were not obscene as a matter of law.” He urges us, however, to deny relief on other grounds.

       Petitioners direct our attention to the document filed by the prosecutor in support of his decision to nolle prosse the charges. It contains the following notation:
      “SUPREME COURT OF THE UNITED STATES- REMANDED THIS CASE UNDER GUIDELINES OF MILLER V. CALIFORNIA. THIS CASE NOLLE PROSSED USING PROSECUTORIAL DISCRETION REGARDING ITS AGE AND LOCATION OF WITNESSES.”


author: Per Curiam.

text:
    McCARTHY v. PHILADELPHIA CIVIL SERVICE COMMISSION
    No. 75-783.
    Decided March 22, 1976
   Per Curiam.

After 16 years of service, appellant’s employment in the Philadelphia Fire Department was terminated because he moved his permanent residence from Philadelphia to New Jersey in contravention of a municipal regulation requiring employees of the city of Philadelphia to be residents of the city. He challenges the constitutionality of the regulation and the authorizing ordinances as violative of his federally protected right of interstate travel. The regulation was sustained by the Commonwealth Court of Pennsylvania and review was denied by the Pennsylvania Supreme Court. His timely appeal is here pursuant to 28 U. S. C. § 1257 (2).

The Michigan Supreme Court held that Detroit’s similar requirement for police officers was not irrational and did not violate the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. We dismissed the appeal from that judgment because no substantial federal question was presented. Detroit Police Officers Assn. v. City of Detroit, 405 U. S. 950 (1972). We have therefore held that this kind of ordinance is not irrational. Hicks v. Miranda, 422 U. S. 332, 343-345 (1975); see War dwell v. Board of Education of Cincinnati, 529 F. 2d 625, 628 (CA6 1976).

We have not, however, specifically addressed the contention made by appellant in this case that his constitutionally recognized right to travel interstate as defined in Shapiro v. Thompson, 394 U. S. 618 (1969); Dunn v. Blumstein, 405 U. S. 330 (1972); and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), is impaired. Each of those cases involved a statutory requirement of residence in the State for at least one year before becoming eligible either to vote, as in Dunn, or to receive welfare benefits, as in Sha.piro and Memorial Hospital. Neither in those cases, nor in any others, have we questioned the validity of a condition placed upon municipal employment that a person be a resident at the time of his application. In this case appellant claims a constitutional right to be employed by the city of Philadelphia while he is living elsewhere. There is no support in our cases for such a claim.

We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration. Thus in Shapiro, supra, at 636, we stated: “The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites.”. And in Memorial Hospital, supra, at 255, quoting Dunn, supra, at 342 n. 13, the Court explained that Shapiro and Dunn did not question “ ‘the validity of appropriately defined and uniformly applied bona fide residence requirements.' ”

This case involves that kind of bona fide continuing-residence requirement. The judgment of the Commonwealth Court of Pennsylvania is therefore affirmed.

The Chief Justice, Mr. Justice Brennan, and Mr. Justice Blackmun would note probable jurisdiction and set the case for argument.

       § 7-401 (u) of the Philadelphia Home Rule Charter of 1951 ; § 20-101 of the Philadelphia Code (as amended); and § 30.01 of the Philadelphia Civil Service Regulations.

       19 Pa. Commw. 383, 339 A. 2d 634 (1975).

       In an unreported order entered on September 2, 1975, that court denied a petition for review.

        Detroit Police Officers Assn. v. City of Detroit, 385 Mich. 519, 190 N. W. 2d 97 (1971).

       Although there is a durational residence requirement in the Philadelphia ordinances, appellant does not have standing to challenge that requirement.

       Nor did any of those cases involve a public agency’s relationship with its own employees which, of course, may justify greater control than that over the citizenry at large. Cf. Pickering v. Board of Education, 391 U. S. 563, 568 (1968); CSC v. Letter Carriers, 413 U. S. 548 (1973); Broadrick v. Oklahoma, 413 U. S. 601 (1973).

       Appellant seeks review of other alleged errors as if presented in a petition for a writ of certiorari. We decline to review those issues.