author: Mr. Justice Stevens Mr. Justice Stewart’s Mr. Justice Stewart, Mb. Justice Powell,

text:
    BRANTI v. FINKEL et al.
    No. 78-1654.
    Argued December 4, 1979
    Decided March 31, 1980

      Stevens, J., delivered, the opinion for the Court, in which Burger, C. J., and Brennan, White, Marshall, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, post, p. 520. Powell, J., filed a dissenting opinion, in which Rehnquist, J., joined and in Part I of which Stewart, J., joined, post, p. 521.

      Marc L. Parris argued the cause for petitioner. With him on the briefs was Charles Apotheker.

      David MacRae Wagner argued the cause and filed a brief for respondents.
   Mr. Justice Stevens

delivered the opinion of the Court.

The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs.

Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District Court for the Southern District of New York in order to preserve their positions as assistant public defenders in Rockland County, New York. On January 4,1978, on the basis of a showing that the petitioner public defender was about to discharge them solely because they were Republicans, the District Court entered a temporary restraining order preserving the status quo. After hearing evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined petitioner from terminating or attempting to terminate respondents’ employment “upon the sole grounds of their political beliefs.” 457 F. Supp. 1284, 1285 (1978). The Court of Appeals affirmed in an unpublished memorandum opinion, judgment order reported at 598 F. 2d 609 (CA2 1979) (table).

The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.

Petitioner Branti’s predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, 1978, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.

The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans and thus did not have the necessary Democratic sponsors:

“The sole grounds for the attempted removal of plaintiffs were the facts that plaintiffs’ political beliefs differed from those of the ruling Democratic majority in the County Legislature and that the Democratic majority had determined that Assistant Public Defender appointments were to be made on political bases.” 457 F. Supp., at 1293.

The court rejected petitioner’s belated attempt to justify the dismissals on nonpolitical grounds. Noting that both Branti and his predecessor had described respondents as “competent attorneys,” the District Court expressly found that both had been “satisfactorily performing their duties as Assistant Public Defenders.” Id., at 1292.

Having concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible under this Court’s decision in Elrod v. Burns, 427 U. S. 347, only if assistant public defenders are the type of policymaking, confidential employees who may be discharged solely bn the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. Although recognizing that they had broad responsibilities with respect to particular cases that were assigned to them, the court found that respondents had “very limited, if any, responsibility” with respect to the overall operation of the public defender’s office. They did not “act as advisors or formulate plans for the implementation of the broad goals of the office” and, although they made decisions in the context of specific cases, “they do not make decisions about the orientation and operation of the office in which they work.” 457 F. Supp., at 1291.

The District Court also rejected the argument that the confidential character of respondents’ work justified conditioning their employment on political grounds. The court found that they did not occupy any confidential relationship to the policy-making process, and did not have access to confidential documents that influenced policymaking deliberations. Rather, the only confidential information to which they had access was the product of their attorney-client relationship with the office’s clients; to the extent that such information was shared with the public defender, it did not relate to the formulation of office policy.

In light of these factual findings, the District Court concluded that petitioner could not terminate respondents’ employment as assistant public defenders consistent with the First and Fourteenth Amendments. On appeal, a panel of the Second Circuit affirmed, specifically holding that the District Court’s findings of fact were adequately supported by the record. That court also expressed “no doubt” that the District Court “was correct in concluding that an assistant public defender was neither a policymaker nor a confidential employee.” We granted certiorari, 443 U. S. 904, and now affirm.

Petitioner advances two principal arguments for reversal: First, that the holding in Elrod v. Burns is limited to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public defender.

I

In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them “because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders.” 427 U. S., at 351. That holding was supported by two separate opinions.

Writing for the plurality, Mr. Justice Brennan identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff’s employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party’s candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs. That conclusion, in his opinion, brought the practice within the rule of cases like Board of Education v. Barnette, 319 U. S. 624, condemning the use of governmental power to prescribe what the citizenry-must accept as orthodox opinion.

Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, Me. Justice Brennan- also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like Perry v. Sindermann, 408 U. S. 593. In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated:

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U, S. 513, 526. Such interference with constitutional rights is impermissible.
“Thus, the respondent’s lack of a contractual or tenure ‘right’ to re-employment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the non-renewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. Shelton v. Tucker, [364 U. S. 479]; Keyishian v. Board of Regents, [385 U. S. 589]. We reaffirm those holdings here.” Id., at 597-598.

If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes. Under this line of analysis, unless the government can demonstrate “an overriding interest,” 427 U. S., at 368, "of vital importance,” id., at 362, requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.

Mr. Justice Stewart’s

opinion concurring in the judgment avoided comment on the first branch of Mr. Justice Brennan’s analysis, but expressly relied on the same passage from Perry v. Sindermann that is quoted above.

Petitioner argues that Elrod v. Burns should be read to prohibit only dismissals resulting from an employee’s failure to capitulate to political coercion. Thus, he argues that, so long as an employee is not asked to change his political affiliation or to contribute to or work for the party’s candidates, he may be dismissed with impunity — even though he would not have been dismissed if he had had the proper political sponsorship and even though the sole reason for dismissing him was to replace him with a person who did have such sponsorship. Such an interpretation would surely emasculate the principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one’s job. More importantly, petitioner’s interpretation would require the Court to repudiate entirely the conclusion of both Mr. Justice Brennan and Mr. Justice Stewart that the First Amendment prohibits the dismissal of a public employee solely because of his private political beliefs.

In sum, there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged “solely for the reason that they were not affiliated with or sponsored by the Democratic Party.” 427 U. S., at 350.

II

Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency. Id,, at 366. In Elrod, it was clear that the duties of the employees — the chief deputy of the process division of the sheriff’s office, a process server and another employee in that office, and a bailiff and security guard at the Jpvenile Court of Cook County — were not of that character, for they were, as Mr. Justice Stewart stated, “nonpolicy-making, nonconfidential” employees. Id., at 375.

As Mr. Justice Brennan noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Id., at 367. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State’s election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee’s governmental responsibilities.

It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county .government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State. As we recently observed in commenting on the duties of counsel appointed to represent indigent defendants in federal criminal proceedings:

“[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation.” Ferri v. Ackerman, 444 U. S. 193, 204.

Thus, whatever policymaking occurs in the public defender’s office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public defender’s office to make his tenure dependent on his allegiance to the dominant political party.

Accordingly, the entry of an injunction against termination of respondents’ employment on purely political grounds was appropriate and the judgment of the Court of Appeals is

Affirmed.

Mr. Justice Stewart,

dissenting.

I joined the judgment of the Court in Elrod v. Burns, 427 U. S. 347, because it is my view that, under the First and Fourteenth Amendments, “a nonpolicymaking, nonconfiden-tial government employee can [not] be discharged . . . from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Id., at 375. That judgment in my opinion does not control the present case for the simple reason that the respondents here clearly are not “nonconfidential” employees.

The respondents in the present case are lawyers, and the employment positions involved are those of assistants in the office of the Rockland County Public Defender. The analogy to a firm of lawyers in the private sector is a close one, and I can think of few occupational relationships more instinct with the necessity of mutual confidence and trust than that kind of professional association.

I believe that the petitioner, upon his appointment as Public Defender, was not constitutionally compelled to enter such a close professional and necessarily confidential association with the respondents if he did not wish to do so.

Mb. Justice Powell,

with whom Mr. Justice Rehnquist joins, and with whom Mr. Justice Stewart joins as to Part I, dissenting.

The Court today continues the evisceration of patronage practices begun in Elrod v. Burns, 427 U. S. 347 (1976). With scarcely a glance at almost 200 years of American political tradition, the Court further limits the relevance of political affiliation to the selection and retention of public employees. Many public positions previously filled on the basis of membership in national political parties now must be staffed in accordance with a constitutionalized civil service standard that will affect the employment practices of federal, state, and local governments. Governmental hiring practices long thought to be a matter of legislative arid executive discretion now will be subjected to judicial oversight. Today’s decision is an exercise of judicial lawmaking that, as The Chief Justice wrote in his Elrod dissent, “represents a significant intrusion into the area of legislative and policy concerns.” Id., at 375. I dissent.

I

The Court contends that its holding is compelled by the First Amendment. In reaching this conclusion, the Court largely ignores the substantial governmental interests served by patronage. Patronage is a long-accepted practice that never has been eliminated totally by civil service laws and regulations. The flaw in the Court’s opinion lies not only in its application of First Amendment principles, see Parts II-IV, infra, but also in its promulgation of a new, and substantially expanded, standard for determining which governmental employees may be retained or dismissed on the basis of political affiliation.

In Elrod v. Burns, three Members of the Court joined a plurality opinion concluding that nonpolieymaking employees could not be dismissed on the basis of political affiliation. 427 U. S., at 367 (opinion of Brennan, J., with whom White and Marshall, JJ., joined). Two Members of the Court joined an opinion concurring in the judgment and stating that nonpolicymaking, nonconfidential employees could not be so dismissed. Id., at 375 (opinion of Stewart, J., with whom Blackmun, J., joined). Notwithstanding its purported reliance upon the holding of Elrod, ante, at 512, n. 6, the Court today ignores the limitations inherent in both views. The .Court rejects the limited role for patronage recognized in the plurality opinion by holding that not all policymakers may be dismissed because of political affiliation. Ante, at 518-520. And the Court refuses to allow confidential employees to be dismissed for partisan reasons. Ante, at 520, n. 14; see ante, p. 520 (Stewart, J., dissenting). The broad, new standard is articulated as follows:

“[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Ante, at 518.

The Court gives three examples to illustrate the standard. Election judges and certain executive assistants may be chosen on the basis of political affiliation; college football coaches may not. Ibid. And the Court decides in this case that party affiliation is not an appropriate requirement for selection of the attorneys in a public defender’s office because "whatever policymaking occurs in the public defender’s office must relate to the needs of individual clients and not to any partisan political interests.” Ante, at 519.

The standard articulated by the Court is framed in vague and sweeping language certain to create vast uncertainty. Elected and appointed officials at all levels who now receive guidance from civil service laws, no longer will know when political affiliation is an appropriate consideration in filling a position. Legislative bodies will not be certain whether they have the final authority to make the delicate line-drawing decisions embodied in the civil service laws. Prudent individuals requested to accept a public appointment must consider whether their predecessors will threaten to oust them through legal action.

One example at the national level illustrates the nature and magnitude of the problem created by today’s holding. The President customarily has considered political affiliation in removing and appointing United States attorneys. Given the critical role that these key law enforcement officials play in the administration of the Department of Justice, both Democratic and Republican Attorneys General have concluded, not surprisingly, that they must have the confidence and support of the United States attorneys. And political affiliation has been used as one indicator of loyalty.

Yet, it would be difficult to say, under the Court’s standard, that “partisan” concerns properly are relevant to the performance of the duties of a United States attorney. This Court has noted that “ ‘[t]he office of public prosecutor is one which must be administered with courage and independence.’ ” Imbler v. Pachtman, 424 U. S. 409, 423 (1976), quoting Pearson v. Reed, 6 Cal. App. 2d 277, 287, 44 P. 2d 592, 597 (1935). Nevertheless, I believe that the President must have the right to consider political affiliation when he selects top ranking Department of Justice officials. The President and his Attorney General, not this Court, are charged with the responsibility for enforcing the laws and administering the Department of Justice. The Court’s vague, overbroad decision may cast serious doubt on the propriety of dismissing United States attorneys, as well as thousands of other policymaking employees at all levels of government, because of their membership in a national political party.

A constitutional standard that is both uncertain in its application and impervious to legislative change will now control selection and removal of key governmental personnel. Federal judges will now be the final arbiters as to who federal, state, and local governments may employ. In my view, the Court is not justified in removing decisions so essential to responsible and efficient governance from the discretion of legislative and executive officials.

II

The Court errs not only in its selection of a standard, but more fundamentally in its conclusion that the First Amendment prohibits the use of membership in a national political party as a criterion for the dismissal of public employees. In reaching this conclusion, the Court makes new law from inapplicable precedents. The Court suggests that its decision is mandated by the principle that governmental action may not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . .” Board of Education v. Barnette, 319 U. S. 624, 642 (1943). The Court also relies upon the decisions in Perry v. Sindermann, 408 U. S. 593 (1972), and Keyishian v. Board of Regents, 385 U. S. 589 (1967). Ante, at 514-515; see Elrod v. Burns, 427 U. S., at 358-359 (opinion of Brennan, J.). But the propriety of patronage was neither questioned nor addressed in those cases.

Both Keyishian and Perry involved faculty members who were dismissed from state educational institutions because of their political views. In Keyishian, the Court reviewed a state statute that permitted dismissals of faculty members from state institutions for “treasonable or seditious” utterances or acts. The Court noted that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U. S., at 603. Because of the ambiguity in the statutory language, the Court held that the law was unconstitutionally vague. The Court also held that membership in the Communist Party could not automatically disqualify a person from holding a faculty position in a state university. Id., at 606. In Perry, the Court held that the Board of Regents of a state university system could not discharge a professor in retaliation for his exercise of free speech. 408 U. S., at 598. In neither case did the State suggest that the governmental positions traditionally had been regarded as patronage positions. Thus, the Court correctly held that no substantial state interest justified the infringement of free speech. This case presents a question quite different from that in Keyishian and Perry.

The constitutionality of appointing or dismissing public employees on the basis of political affiliation depends upon the governmental interests served by patronage. No constitutional violation exists if patronage practices further sufficiently important interests to justify tangential burdening of First Amendment rights. See Buckley v. Valeo, 424 U. S. 1, 25 (1976). This inquiry cannot be resolved by reference to First Amendment cases in which patronage was neither involved nor discussed. Nor can the question in this case be answered in a principled manner without identifying and weighing the governmental interest served by patronage.

Ill

Patronage appointments help build stable political parties by offering rewards to persons who assume the tasks necessary to the continued functioning of political organizations. “As all parties are concerned with power they naturally operate by placing members and supporters into positions of power. Thus there is nothing derogatory in saying that a primary function of parties is patronage.” J. Jupp, Political Parties 25-26 (1968). The benefits of patronage to a political organization do not derive merely from filling policymaking positions on the basis of political affiliation. Many, if not most, of the jobs filled by patronage at the local level may not involve policymaking functions. The use of patronage to fill such positions builds party loyalty and avoids “splintered parties and unrestrained factionalism [that might] do significant damage to the fabric of government.” Storer v. Brown, 415 U. S. 724, 736 (1974).

Until today, I would have believed that the importance of political parties was self-evident. Political parties, dependent in many ways upon patronage, serve a variety of substantial governmental interests. A party organization allows political candidates to muster donations of time and money necessary to capture the attention of the electorate. Particularly in a time of growing reliance upon expensive television advertisements, a candidate who is neither independently wealthy nor capable of attracting substantial contributions must rely upon party workers to bring his message to the voters. In contests for less visible offices, a candidate may have no efficient method of appealing to the voters unless he enlists the efforts of persons who seek reward through the patronage system. Insofar as the Court’s decision today limits the ability of candidates to present their views to the electorate, our democratic process surely is weakened.

Strong political parties also aid effective governance after election campaigns end. Elected officials depend upon appointees who hold similar views to carry out their policies and administer their programs. Patronage — the right to select key personnel and to reward the party “faithful” — serves the public interest by facilitating the implementation of policies endorsed by the electorate. The Court’s opinion casts a shadow over this time-honored element of our system. It appears to recognize that the implementation of policy is a legitimate goal of the patronage system and that some, but not all, policymaking employees may be replaced on the basis of their political affiliation. Ante, at 518. But the Court does not recognize that the implementation of policy often depends upon the cooperation of public employees who do not hold policymaking posts. As one commentator has written: “What the Court forgets is that, if government is to work, policy implementation is just as important as policymaking. No matter how wise the chief, he has to have the right Indians to transform his ideas into action, to get the job done.” The growth of the civil service system already has limited the ability of elected politicians to effect political change. Public employees immune to public pressure “can resist changes in policy without suffering either the loss of their jobs or a cut in their salary.” Such effects are proper when they follow from legislative or executive decisions to withhold some jobs from the patronage system. But the Court tips the balance between patronage and nonpatronage positions, and, in my view, imposes unnecessary constraints upon the ability of responsible officials to govern effectively and to carry out new policies.

Although the Executive and Legislative Branches of Government are independent as a matter of constitutional law, effective government is impossible unless the two Branches cooperate to make and enforce laws. Over the decades of our national history, political parties have furthered — if not assured--a measure of cooperation between the Executive and Legislative Branches. A strong party allows an elected executive to implement his programs and policies by working with legislators of the same political organization. But legislators who owe little to their party tend to act independently of its leadership. The result is a dispersion of political influence that may inhibit a political party from enacting its programs into law. The failure to sustain party discipline, at least at the national level, has been traced to the inability of successful political parties to offer patronage positions to their members or to the supporters of elected officials.

The breakdown of party discipline that handicaps elected officials also limits the ability of the electorate to choose wisely among candidates. Voters with little information about individuals seeking office traditionally have relied upon party affiliation as a guide to choosing among candidates. With the decline in party stability, voters are less able to blame or credit a party for the performance of its elected officials. Our national party system is predicated upon the assumption that political parties sponsor, and are responsible for, the performance of the persons they nominate for office.

In sum, the effect of the Court’s decision will be to decrease the accountability and denigrate the role of our national political parties. This decision comes at a time when an increasing number of observers question whether our national political parties can continue to operate effectively. Broad-based political parties supply an essential coherence and flexibility to the American political scene. They serve as coalitions of different interests that combine to seek national goals. The decline of party strength inevitably will enhance the influence of special interest groups whose only concern all too often is how a political candidate votes on a single issue. The quality of political debate, and indeed the capacity of government to function in the national interest, suffer when candidates and officeholders are forced to be more responsive to the narrow concerns of unrepresentative special interest groups than to overarching issues of domestic and foreign policy. The Court ignores the substantial governmental interests, served by reasonable patronage. In my view, its decision will seriously hamper the functioning of stable political parties.

IV

The facts of this case also demonstrate that the Court’s decision well may impair the right of local voters to structure their government. Consideration of the form of local government in Rockland County, N. Y., demonstrates the antidemocratic effect of the Court’s decision.

The voters of the county elect a legislative body. Among the responsibilities that the voters give to the legislature is the selection of a county public defender. In 1972, when the county voters elected a Republican majority in the legislature, a Republican was selected as Public Defender. The Public Defender retained one respondent and appointed the other as Assistant Public Defenders. Not surprisingly, both respondents are Republicans. In 1976, the voters elected a majority of Democrats to the legislature. The Democratic majority, in turn, selected a Democratic Public Defender who replaced both respondents with Assistant Public Defenders approved by the Democratic legislators. Ante, at 509-510, and n. 5.

The voters of Rockland County are free to elect their public defender and assistant public defenders instead of delegating their selection to elected and appointed officials. Certainly the Court’s holding today would not preclude the voters, the ultimate “hiring authority,” from choosing both public defenders and their assistants by party membership. The voters’ choice of public officials on the basis of political affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor may any incumbent contend seriously that the voters’ decision not to re-elect him because of his political views is an impermissible infringement upon his right of free speech or affiliation. In other words, the operation of democratic government depends upon the selection of elected officials on precisely the basis rejected by the Court today.

Although the voters of Rockland County could have elected both the public defender and his assistants, they have given their legislators a representative proxy to appoint the public defender. And they have delegated to the public defender the power to choose his assistants. Presumably the voters have adopted this course in order to facilitate more effective representative government. Of course, the voters could have instituted a civil service system that would preclude the selection of either the public defender or his assistants on the basis of political affiliation. But the continuation of the present system reflects the electorate’s decision to select certain public employees on the basis of political affiliation.

The Court’s decision today thus limits the ability of the voters of a county to structure their democratic government in the way that they please. Now those voters must elect both the public defender and his assistants if they are to fill governmental positions on a partisan basis.* Because voters certainly may elect governmental officials on the basis of party ties, it is difficult to perceive a constitutional reason for prohibiting them from delegating that same authority to legislators and appointed officials.

V

The benefits of political patronage and the freedom of voters to structure their representative government are substantial governmental interests that justify the selection of the assistant public defenders of Rockland County on the basis of political affiliation. The decision to place certain governmental positions within a civil service system is a sensitive political judgment that should be left to the voters and to elected representatives of the people. But the Court’s constitutional holding today displaces political responsibility with judicial fiat. In my view, the First Amendment does not incorporate a national civil service system. I would reverse the judgment of the Court of Appeals.

       Jurisdiction was based on 42 U. S. C. § 1983 and 28 U. S. C. § 1343 (3).

       Pursuant to Rule 65 (a) (2) of tbe Federal Rules of Civil Procedure, the plenary trial was consolidated with the hearing on the application for a preliminary injunction.

       The District Court explained that its ruling required petitioner to retain respondents in their prior positions, with full privileges as employees: “ [Compliance with the judgment to be entered herein will require defendant both to permit plaintiffs to work as Assistants and to pay them the normal Assistant’s salary. Mere payment of plaintiffs’ salary will not constitute full compliance with the judgment entered herein; for plaintiffs’ constitutional right, which is upheld herein, is the right not to be dismissed from public employment upon the sole ground of their political beliefs. Defendant cannot infringe that right of plaintiffs with impunity by the mere expedient of paying plaintiffs a sum of money.” 457 F. Supp. 1284, 1285-1286, n. 4 (1978).

       The District Court noted that Finkel had changed his party registration from Republican to Democrat in 1977 in the apparent hope that such action would enhance his chances of being reappointed as an assistant when a new, Democratic public defender was appointed. The court concluded that, despite Finkel’s formal change of party registration, the parties had regarded him as a Republican at all relevant times. Id., at 1285, n. 2.

       “An examination of the selection process that was employed in arriving at the name of each of the nine 1978 appointees shows that the hiring decisions were, for all practical purposes, made by Democratic legislators or chairpersons in accordance with the procedures that had been decided upon by the Democratic caucus, and, with respect to every selection save that of Sanchez, those procedures excluded from consideration candidates who were affiliated with a party other than the Democratic Party. Moreover, the evidence shows that the only reason for which Branti sought to terminate plaintiffs as Assistants was that they were not recommended or sponsored pursuant to the procedures that had been decided upon by the Democratic caucus.” Id., at 1288.

       Petitioner also makes two other arguments. First, he contends that the action should have been dismissed because the evidence showed that he would have discharged respondents in any event due to their lack of competence as public defenders. See Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274. The Court of Appeals correctly held this contention foreclosed by the District Court’s findings of fact, which it found to be adequately supported by the record. In view of our settled practice of accepting, absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred, we decline to review these and other findings of fact petitioner argues were clearly erroneous. See Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275; United States v. Ceccolini, 435 U. S. 268, 273.
      Second, relying on testimony that an assistant’s term in office automatically expires when the public defender’s term expires, petitioner argues that we should treat this case as involving a “failure to reappoint” rather than a dismissal and, as a result, should apply a less stringent standard. I’etitioner argues that because respondents knew the system was a patronage system when they were hired, they did not have a reasonable expectation of being rehired when control of the office shifted to the Democratic Party. A similar waiver argument was rejected in Elrod v. Burns, 427 U. S. 347, 360, n. 13; see also id., at 380 (Powell, J., dissenting). After Elrod, it is clear that the lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee’s private political beliefs.
      Unlike Me. Justice Powell in dissent, post, at 526-532, petitioner does not ask us to reconsider the holding in Elrod.

       Mr. Justice Brennan noted that many other practices are included within the definition of a patronage system, including placing supporters in government jobs not made available by political discharges, granting supporters lucrative government contracts, and giving favored wards improved public services. In that case, as in this, however, the only practice at issue was the dismissal of public employees for partisan reasons. 427 U. S., at 353; id, at 374 (opinion of Stewart, J.). In light of the limited nature of the question presented, we have no occasion to address petitioner’s argument that there is a compelling governmental interest in maintaining a political sponsorship system for filling vacancies in the public defender’s office.

       “An individual who is a member of the out-party maintains affiliation with his own party at the risk of losing his job. He works for the election of his party’s candidates and espouses its policies at the same risk. The financial and campaign assistance that he is induced to provide to another party furthers the advancement of that party’s policies to the detriment of his party’s views and ultimately his own beliefs, and any assessment of his salary is tantamount to coerced belief. See Buckley v. Valeo, 424 U. S. 1, 19 (1976). Even a pledge of allegiance to another party, however ostensible, only serves to compromise the individual’s true beliefs. Since the average public employee is hardly in the financial position to support his party and another, or to lend his time to two parties, the individual’s ability to act according to his beliefs and to associate with others of his political persuasion is constrained, and support for his party is diminished.” Id., at 355-356.
      Mr. Justice BrenNAN also indicated that a patronage system may affect freedom of belief more indirectly, by distorting the electoral process. Given the increasingly pervasive character of government employment, he concluded that the power to starve political opposition by commanding partisan support, financial and otherwise, may have a significant impact on the formation and expression of political beliefs.

       “Regardless of the nature of the inducement, whether it be by the denial of public employment or, as in Board of Education v. Barnette, 319 U. S. 624 (1943), by the influence of a teacher over students, ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ Id., at 642.” Id., at 356.

       “The Court recognized in United Public Workers v. Mitchell, 330 U. S. 75, 100 (1947), that ‘Congress may not “enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office. . . This principle was reaffirmed in Wieman v. Updegraff, 344 U. S. 183 (1952), which held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. And in Cafeteria Workers v. McElroy, 367 U. S. 886, 898 (1961), the Court recognized again that the government could not deny employment because of previous membership in a particular party.” Id., at 357-358.

       As MR. Justice BreNNAN pointed out in Elrod, political sponsorship is often purchased at the price of political contributions or campaign work in addition to a simple declaration of allegiance to the party. Id., at 355. Thus, an employee's realization that he must obtain a sponsor in order to retain his job is very likely to lead to the same type of coercion as that described by the plurality in Elrod. While there was apparently no overt political pressure exerted on respondents in this case, the potentially coercive effect of requiring sponsorship was demonstrated by Mr. Finkel’s change of party registration in a futile attempt to retain his position. See n. 4, supra.

       The plurality emphasized that patronage dismissals could be justified only if they advanced a governmental, rather than a partisan, interest. 427 U. S., at 362. That standard clearly was not met to the extent that employees were expected to perform extracurricular activities for the party, or were being rewarded for past services to the party. Government funds, which are collected from taxpayers of all parties on a nonpolitical basis, cannot be expended for the benefit of one political party simply because that party has control of the government. The compensation of government employees, like the distribution of other public benefits, must be justified by a governmental purpose.
      The Sheriff argued that his employees’ political beliefs did have a bearing on the official duties they were required to perform because political loyalty was necessary to the continued efficiency of the office. But after noting the tenuous link between political loyalty and efficiency where process servers and clerks were concerned, the plurality held that any small gain in efficiency did not outweigh the employees’ First Amendment rights. Id., at 366.

       This is in contrast to the broader public responsibilities of an official such as a prosecutor. We express no opinion as to whether the deputy of such an official could be dismissed on grounds of political party affiliation or loyalty. Cf. Newcomb v. Brennan, 558 F. 2d 825 (CA7 1977), cert. denied, 434 U. S. 968 (dismissal of deputy city attorney).

       As the District Court observed at the end of its opinion, it is difficult to formulate any justification for tying either the selection or retention of an assistant public defender to his party affiliation:
      “Perhaps not squarely presented in this action, but deeply disturbing nonetheless, is the question of the propriety of political considerations entering into the selection of attorneys to serve in the sensitive positions of Assistant Public Defenders. By what rationale can it even be suggested that it is legitimate to consider, in the selection process, the politics of one who is to represent indigent defendants accused of crime? No ‘compelling state interest’ can be served by insisting that those who represent such defendants publicly profess to be Democrats (or Republicans).” 457 F. Supp., at 1293, n. 13.
      In his brief petitioner attempts to justify the discharges in this case on the ground that he needs to have absolute confidence in the loyalty of his subordinates. In his dissenting opinion, Mr. Justice Stewart makes the same point, relying on an “analogy to a firm of lawyers in the private sector.” Post, at 521. We cannot accept the proposition, however, that there cannot be “mutual confidence and trust” between attorneys, whether public defenders or private practitioners, unless they are both of the same political party. To the extent that petitioner lacks confidence in the assistants he has inherited from the prior administration for some reason other than their political affiliations, he is, of course, free to discharge them.

       Contrary to repeated statements in the Court’s opinion, the present case does not involve “private political beliefs,” but public affiliation with a political party.

       When Thomas Jefferson became the first Chief Executive to succeed a President of the opposing party, he made substantial use of appointment and removal powers. Andrew Jackson, the next President to follow an antagonistic administration, used patronage extensively when he took office. The use of patronage in the early days of our Republic played an" important role in democratizing American politics. Elrod v. Burns, 427 U. S., at 378-379 (Powell, J., dissenting). President Lincoln’s patronage practices and his reliance upon the newly formed Republican Party enabled him to build support for his national policies during the Civil War. See E. McKitrick, Party Politics and the Union and Confederate War Efforts, in The American Party System 117, 131-133 (W. Chambers & W. Burnham eds. 1967). Subsequent patronage reform efforts were “concerned primarily with the corruption and inefficiency that patronage was thought to induce in civil service and the power that patronage practices were thought to give the ‘professional’ politicians who relied on them.” Elrod v. Burns, 427 U. S., at 379 (Powell, J., dissenting). As a result of these efforts, most federal and state civil service employment was placed on a nonpatronage basis. Ibid. A significant segment of public employment has remained, however, free from civil service constraints.

       The Court purports to limit the issue in this case to the dismissal of public employees. See ante, at 513, n. 7. Yet the Court also states that “it is difficult to 'formulate any justification for tying either the selection or retention of an assistant public defender to his party affiliation.” Ante, at 520, n. 14. If this latter statement is not a holding of the Court, it at least suggests that the Court perceives no constitutional distinction between selection and dismissal of public employees.

       The rationale for the Court’s conclusion that election judges may be partisan appointments is not readily apparent. The Court states that “if a State’s election laws require that precincts be supervised- by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration.” Ante, at 518. If the mere presence of a state law mandating political affiliation as a requirement for public employment were sufficient, then the Legislature of Rockland County could reverse the result of this case merely by passing a law mandating that political affiliation be considered when a public defender chooses his assistants. Moreover, it is not apparent that a State could demonstrate, under the standard approved today, that only a political partisan is qualified to be an impartial election judge.

         See Lemann, The Case for Political Patronage, The Washington Monthly, Dec. 1977, p. 8.

       The Court notes that prosecutors hold “broader public responsibilities” than public defenders. Ante, at 519, n. 13. The Court does not suggest, however, that breadth of responsibility correlates with the appropriateness of political affiliation as a requirement for public employment. Indeed, such a contention would appear to be inconsistent with the Court’s assertion that the “ultimate inquiry is not whether the label 'policymaker’ . . . fits a particular position. . . .” Ante, at 518.
      I do not suggest that the Constitution requires a patronage system. Civil service systems have been designed to eliminate corruption and inefficiency not to protect the political beliefs of public employees. Indeed, merit selection systems often impose restrictions on political activities by public employees. D. Rosenbloom, Federal Service and the Constitution: The Development of the Public Employment Relationship 83-86 (1971); see CSC v. Letter Carriers, 413 U. S. 548 (1973). Of course, civil service systems further important governmental goals, including continuity in the operation of government. A strength of our system has been the blend of civil service and patronage appointments, subject always to oversight and change by the legislative branches of government.

       In my Elrod dissent, I suggested that public employees who lose positions obtained through their participation in the patronage system have not suffered a loss of First Amendment rights. 427 U. S., at 380-381. Such employees assumed the risks of the system and were benefited, not penalized, by its practical operation. But the Court bases its holding on the First Amendment and, accordingly, I consider the constitutional issue.

        Board of Education v. Barnette, 319 U. S. 624 (1943), did not involve public employment. In that case, the Court declared that a state statute compelling each public school student to pledge allegiance to the flag violated the First Amendment. Similarly, Wieman v. Updegrajf, 344 U. S. 183 (1952), Shelton v. Tucker, 364 U. S. 479 (1960), and Cafeteria Workers v. McElroy, 367 U. S. 886 (1961), did not concern governmental attempts to hire or dismiss employees pursuant to an established patronage system. The Court also relies upon United Public Workers v. Mitchell, 330 U. S. 75 (1947). Ante, at 515, n. 10. In that case, the Court upheld limitations on the political conduct of public employees that far exceed any burden on First Amendment rights demonstrated in this case.

       See E. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-254 (1966).

       Television and radio enable well-financed candidates to go directly into the homes of voters far more effectively than even the most well-organized “political machine.” See D. Broder, The Party’s Over: The Failure of Politics in America 239-240 (1972).

       Patronage also attracts persons willing to perform the jobs that enable voters to gain easy access to the electoral process. In some localities, “[t]he parties saw that the polls were open when they should be, and that the voting machines worked.” Costikyan, Cities Can Work, Saturday Review, Apr. 4, 1970, pp. 19, 20. At a time when the percentage of Americans who vote is declining steadily, see Statistical Abstract of the United States 516 (1979), the citizen who distributes his party’s literature, who helps to register voters, or who transports voters to the polls on Election Day performs a valuable public service.

       In addition, political parties raise funds, recruit potential candidates, train party workers, provide assistance to voters, and act as a liaison between voters and governmental bureaucracies. Assistance to constituents is a common form of patronage. At the local level, political clubhouses traditionally have helped procure municipal services for constituents who often have little or no other access to public officials. M. Tolchin & S. Tolchin, To The Victor . . .: Political Patronage from the Clubhouse to the White House 19 (1971). Party organizations have been a means of upward mobility for newcomers to the United States and members of minority groups. See Elrod v. Burns, 427 U. S., at 382, and n. 6 (Powell, J., dissenting); S. Lubell, The Future of American Politics 76-77 (1952).

       The reasoning of the Elrod plurality clearly permitted vestiges of patronage to continue in order to ensure that “representative government not be undercut by tactics obstructing the implementation of policies of the new administration. . . .” 427 U. S., at 367. But in view of the Court’s new holding that some policymaking positions may not be filled on the basis of political affiliation, ante, at 518, elected officials may find changes in public policy thwarted by policymaking employees protected from replacement by the Constitution. The official with a hostile or foot-dragging subordinate will now be in a difficult position. In order to replace such a subordinate, he must be prepared to prove that the subordinate’s “private political beliefs [will] interfere with the discharge of his public duties.” Ante, at 517.

       Peters, A Kind Word for the Spoils System, The Washington Monthly, Sept. 1976, p. 30.

       Tolchin & Tolchin, supra n. 11, at 72-73. See Costikyan, supra n. 8, at 353-354.

       Herbers, The Party’s Over for the Political Parties, The New York Times Magazine, Dec. 9, 1979, pp. 158, 175.

       See Costikyan, supra n. 8, at 252-253.

       In local elections, a candidate’s party affiliation may be the most salient information communicated to voters. One study has indicated that affiliation remains the predominant influence on voter choice in low-visibility elections such as contests for positions in the state legislature. See Murray & Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc. Sci. Q. 752, 756 (1979).

       See, e. g., W. Burnham, The 1976 Election: Has the Crisis Been Adjourned?, in American Politics and Public Policy 1, 19-22 (W. Burnham & M. Weinberg eds. 1978); Broder, supra n. 9; Herbers, supra n. 15, at 159; Pomper, The Decline of the Party in American Elections, 92 Pol. Sci. Q. 21, 40-41 (1977). See also n. 9, supra.

       In Florida, for example, the local public defender is elected. See Fla. Const., Art. 5, § 18; Fla. Stat. § 27.50 (1979).

       The Court’s description of the policymaking functions of a public defender’s office suggests that the public defender may no longer be chosen by the County Legislature on a partisan basis. Ante, at 519-520.


source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice White,

license: Public Domain

text:
    UNITED STATES v. MITCHELL et al.
    No. 78-1756.
    Argued December 3, 1979
    Decided April 15, 1980

      Marshall, J., delivered the opinion of the Court, in which Stewart, Blackmun, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 546. Burger, C. J., took no part in the decision of the case.

      Deputy Solicitor General Claiborne argued the cause for the United States. On the briefs were Solicitor General McCree, Acting Assistant Attorney General Sagalkin, and Robert L. Klarquist.

      Charles A. Hobbs argued the cause for respondents. With him on the brief was Jerry R. Goldstein.

   Mr. Justice Marshall

delivered the opinion of the Court.

This case presents the question whether the Indian General Allotment Act of 1887 authorizes the award of money-damages against the United States for alleged mismanagement of forests located on lands allotted to Indians under that Act.

I

In 1873, a Reservation was established by Executive Order in the State of Washington for the Quinault Tribe. 1 Kappler, Indian Affairs 923 (2d ed. 1904). Much of thejand within the Reservation was forested. By 1935, acting-under the authority of the General Allotment Act of 1887, ch. 119, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq., the Government had allotted all of the Reservation’s land in trust to individual Indians. Other enactments of Congress require the Secretary of the Interior to manage these forests, sell the timber, and pay the proceeds of such sales, less administrative expenses, to the allottees.

The respondents are 1,465 individual allottees of land contained in the Quinault Reservation, the Quinault Tribe, which now holds some allotments, and the Quinault Allottees Association, an unincorporated association formed to promote the interests of the allottees of the Quinault Reservation. In four actions consolidated in the Court of Claims, the respondents sought to recover damages from the Government for alleged mismanagement of timber resources found on the Reservation. The respondents asserted that the Government: (1) failed to obtain fair market value for timber sold; (2) failed to manage timber on a sustained-yield basis and to rehabilitate the land after logging; (3) failed to obtain payment for some merchantable timber; (4) failed to develop a proper system of roads and easements for timber operations and exacted improper charges from allottees for roads; (5) failed to pay interest on certain funds and paid insufficient interest on other funds; and (6) exacted excessive administrative charges from allottees. The respondents contended that they were entitled to recover money damages because this alleged misconduct breached a fiduciary duty owed to them by the United States as trustee of the allotted lands under the General Allotment Act. ,..

The United States moved to dismiss the respondents’ actions on the ground that it had not waived its sovereign immunity with respect to the claims raised. The Court of Claims, sitting en banc, denied the Government’s motion. 219 a. Cl. 95, 591 F. 2d 1300 (1979). Reasoning that Government mismanagement of the kind alleged breaches the Government’s fiduciary duty under the General Allotment Act, the court held that the Act provides Indian allottees a cause of action for money damages against the United States.

We granted certiorari, 442 U. S. 940 (1979), and now reverse and remand.

II

It is elementary that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U. S. 584, 586 (1941). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U. S. 1, 4 (1969). In the absence of clear congressional consent, then, “there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States.” United States v. Sherwood, supra, at 587-588.

The individual claimants in this action premised jurisdiction in the Court of Claims upon the Tucker Act, 28 U. S. C. § 1491, which gives that court jurisdiction of “any claim against the United States founded either upon the Constitution, or any Act of Congress.” The Tucker Act is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U. S. 392, 398 (1976). The Act merely “confers jurisdiction upon [the Court of Claims] whenever the substantive right exists.” Ibid. The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity with respect to their claims.

The same is true for the tribal claimant. Jurisdiction over its claims was based on § 24 of the Indian Claims Commission Act, 28 U. S. C. § 1505. That provision states:

“The Court of Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in 'the Court of Claims if the claimant were not an Indian tribe, band or group.”

By enacting this statute, Congress plainly intended to give tribal claimants the same access to the Court of Claims provided to individuals by the Tucker Act. The House Committee Report stated:

“As respects claims accruing after its adoption this bill confers jurisdiction on the Court of Claims to determine and adjudicate any tribal claim of a character which would be cognizable in the Court of Claims if the claimant were not an Indian tribe. In such cases the claimants are to be entitled to recover in the same manner, to the same extent, and subject to the same conditions and limitations, and the United States shall be entitled to the same defenses, both at law and in equity, ... as in cases brought in the Court of Claims by non-Indians under section 145 of the Judicial Code [now 28 U. S. C. § 1491], as amended.” H. R. Rep. No. 1466, 79th Cong., 1st Sess., 13 (1945).

See also Hearings on H. R. 1198 and H. R. 1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 149 (1945) (statement of Assistant Solicitor Cohen); H. R. Rep. No. 352, 81st Cong., 1st Sess.,, 15-16 (1949) (recodify-ing the statute).

Under 28 U. S. C. § 1505, then, tribal claimants have the same access to the Court of Claims provided to individual claimants by 28 U. S. C. § 1491, and the United States is entitled to the same defenses at law and in equity under both statutes. It follows that 28 U. S. C. § 1505 no more confers a substantive right against the United States to recover money damages than does 28 U. S. C. § 1491.

III

Section 1 of the General Allotment Act authorizes the President to allot to each Indian residing on a reservation up to 80 acres of agricultural land or 160 acres of grazing land found within the reservation. 24 Stat. 388, as amended, 25 U. S. C. § 331. Section 5 of the Act provides that the United States shall retain title to such allotted lands in trust for the benefit of the allottees:

“Upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made . . . and that at the expiration of said period the United States will convey the same by patent to said Indian ... , in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void.” 24 Stat. 389, as amended, 25 U. S. C. § 348.

Under § 2 of the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 462, the United States now holds title to these lands indefinitely.

The Court of Claims held that the General Allotment Act creates a fiduciary duty on the part of the United States to manage timber resources properly and constitutes a waiver of sovereign immunity against a suit for money damages as compensation for breaches of that duty. The court drew both of these conclusions from the Act’s language providing that the United States is to “hold the land ... in trust for the sole use and benefit of the” allottee. The court held that this language created an express trust, and concluded that money damages are available to compensate for breaches of this trust, apparently because that remedy is available in the ordinary situation in which a trustee has violated a fiduciary duty and because without money damages allottees would have no effective redress for breaches of trust.

We need not consider whether, had Congress actually intended the General Allotment Act to impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee, the Act would constitute a waiver of sovereign immunity. We conclude that the Act created only a limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources.

The Act does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands. The language of § 5 that imposes the trust in question must be read in pqri materia with the language of §§ 1 and 2. Both of these sections indicate that the Indian allottee, and not a representative of the United States, is responsible for using the land for agricultural or grazing purposes. Furthermore, the legislative history of the Act plainly indicates that the trust Congress placed on allotted lands is of limited scope. Congress intended that, even during the period in which title to allotted land would remain in the United States, the allottee would occupy the land as a homestead for his personal use in agriculture or grazing. See Mattz v. Arnett, 412 U. S. 481, 496 (1973); 13 Cong. Rec. 3211 (1882) (Sen. Dawes) (the allottee is to be “the occupant of the land and enjoy all its use”)- See also H. R. Rep. No. 2247, 48th Cong., 2d Sess., 1 (1885); 17 Cong. Rec. 1630-1631 (1886) (Sens. . Plumb and Dawes); id., at 1632 (Sen. Maxey); 18 Cong. Rec. 190-191 (1886) (Rep. Skinner). Under this scheme, then, the allot-tee, and not the United States, was to manage the land.

The earliest drafts of the Act provided that, during the 25-year period before the allottee would receive fee simple title, the allottee would hold title to the land subject to a restraint on alienation. S. 1773, 46th Cong., 3d Sess. (1880); S. 1455, 47th Cong., 1st Sess. (1882). On Senator Dawes’ motion, this language was amended to provide that the United States would hold the land “in trust” for that period. 13 Cong. Rec. 3212 (1882). Senator Dawes explained that the statute as amended would still ensure that title to the land would be transferred to the Indian allottee at the expiration of 25 years. He promoted the amendment because he feared that States might attempt to tax allotted lands if the allottees held title to them subject to a restraint on alienation. By placing title in the United States in trust for the allottee, his amendment made it “impossible to raise the question of [state] taxation.” Id., at 3211. The next draft of the Act introduced in the Congress reflected this amendment, see S. 48, 48th Cong., 1st Sess. (1884), as, of course, did the Act as enacted, 24 Stat. 388 (1887). It is plain, then, that when Congress enacted the General Allotment Act, it intended that the United States “hold the land ... in trust” not because it wished the Government to control use of the land and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from state taxation.

Furthermore, events surrounding and following the passage of the General Allotment Act indicate that the Act should not be read as authorizing, much less requiring, the Government to manage timber resources for the benefit of Indian allottees. In 1874, this Court determined that Indians held only a right of occupancy, and not title, to Indian lands, and therefore that they could cut timber for the purpose of clearing the land, but not for the primary purpose of marketing the timber. United States v. Cook, 19 Wall. 591. In 1889, two years after the General Allotment Act was enacted, the Attorney General determined that the rule of United States v. Cook, supra, applied to allotted as well as unallotted lands, unless a statute explicitly provided to the contrary. 19 Op. Atty. Gen. 232. Congress ratified the Attorney General’s opinion by enacting a provision authorizing the sale of dead timber on Indian allotments and reservations, but forbidding the sale of live timber. Act of Feb. 16, 1889, ch. 172, 25 Stat. 673. See also Pine River Logging Co. v. United States, 186 U. S. 279 (1902).

As time passed, Congress occasionally passed legislation authorizing the harvesting and sale of timber on specific reservations. See, e. g., ch. 1350, 34 Stat. 91 (1906) (Jicarilla Apache Reservation). In 1910, Congress reversed its general policy. It empowered the Secretary of the Interior to sell timber on unallotted lands and apply the proceeds of the sales, less administrative expenses, to the benefit of the Indians. Ch. 431, § 7, 36 Stat. 857, as amended, 25 U. S. C. § 407. The Secretary was also authorized to consent to the sale of timber by the owner of any Indian land “held under a trust or other patent containing restrictions on alienations.” Id., § 8, as amended, 25 U. S. C. §406 (a). The Secretary was directed to pay the proceeds of these sales, less administrative expenses, to the “owner” of the allotted lands. Ibid. Congress subsequently enacted other legislation directing the Secretary on how to manage Indian timber resources.

The General Allotment Act, then, cannot be read as establishing that the United States has a fiduciary responsibility for management of allotted forest lands. Any right of the respondents to recover money damages for Government mismanagement of timber resources must be found in some source other than that Act.

The judgment of the Court of Claims is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

The Chief Justice took no part in the decision of this case.

Mr. Justice White,

with whom Mr. Justice Brennan and Mr. Justice Stevens join, dissenting.

In United States v. Testan, 424 U. S. 392 (1976), we held that a statute creates a substantive right enforceable against the United States in money damages only if it “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” Id., at 400, quoting Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967). The Court today holds that Testan bars a damages suit against the Government by Indian allottees, their Tribe, and their association for breach of fiduciary duties in the management of timber lands allotted under the General Allotment Act of 1887 (Act), 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq. Because I believe that the Act can fairly be interpreted as mandating compensation, I dissent.

The Act could hardly be more explicit as to the status of allotted lands. They are to be held by the United States “in trust for the sole use and benefit of the Indian,” § 5 of the Act, 24 Stat. 389, as amended, 25 U. S. C. § 348 (emphasis added). The United States has here unmistakably assumed the obligation to act as trustee of these lands with the Indian allottees as beneficiaries. The Court holds, however, that the “trust” established by § 5 is not a trust as that term is commonly understood, and that Congress had no intention of imposing full fiduciary obligations on the United States. Congress’ purposes, it is said, were narrower: to impose a restraint on alienation by Indian allottees while ensuring immunity from state taxation during the period of the restraint.

I do not find this argument convincing. The language of the Act, which is the starting point for all statutory interpretation, Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 210 (1979); Teamsters v. Daniel, 439 U. S. 551, 558 (1979), explicitly creates a “trust.” This language would surely be a sufficient manifestation of intent to create a trust if the settlor were other than the United States. See Restatement (Second) of Trusts §§ 23, 24 (1959) (hereinafter Restatement) ; G. Bogert, The Law of Trusts and Trustees § 45 (2d ed. 1965) (hereinafter Bogert); 1 A. Scott, The Law of Trusts § 23 (3d ed. 1967) (hereinafter Scott). The structure created by the Act has all the necessary elements of a common-law trust — a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (the designated allotment lands). See Restatement § 2, Comment h, p. 10. The United States has capacity to take and hold property in trust. Id., § 95; 2 Scott § 95 (discussing the Act). And an essential distinguishing feature of any trust, at common law, was that it entailed a

“fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person. . . .” Restatement § 2 (emphasis added).

See 1 Scott § 2.5. Hence, if we are to give the words of the statute their ordinary meaning, as we commonly do when the. law does not define a statutory phrase precisely, Group Life & Health Ins. Co. v. Royal Drug Co., supra, at 211, we should find that the trust established by the Act imposes fiduciary obligations on the United States as trustee.

The legislative history of the Act does not convince me that any narrower reading is required. This statute was enacted against the backdrop of a relationship between the United States and the Indian tribes that had long been considered to “resembl[e] that of a ward to his guardian.” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); see also Morton v. Mancan, 417 U. S. 535, 541-542 (1974); United States v. Mason, 412 U. S. 391, 398 (1973); Squire v. Capoeman, 351 U. S. 1, 2 (1956); United States v. Payne, 264 U. S. 446, 448 (1924); United States v. Kagama, 118 U. S. 375, 382 (1886). When Congress established a “trust” for the Indian allottees it is not sensible to assume an intent to depart from these well-known fiduciary principles. Rather, as we noted in Mattz v. Arnett, 412 U. S. 481, 496 (1973), the policy of the Act was to "continue the reservation system and the trust status of Indian lands.” (Emphasis added.)

The Court acknowledges that the Act did create a trust relationship between the United States and the allottee. Ante, at 542. It holds, however, that the fiduciary obligations imposed on the United States as trustee are very narrow and do not extend to the proper management of Indian timber lands. The lands covered by the Act were mostly agricultural or grazing lands, as to which it was expected that the Indian himself would reside on and manage the allotments. Not until United States v. Payne, supra, was it established that forested lands such as those of the Quinault Reservation were subject to allotment under the Act. Hence, it is said, if the Government has fiduciary duties they are solely to ensure nonalienation and immunity from state taxation.

This argument takes too narrow a view of the fiduciary duty established by the Act and of the subsequent statutory and administrative developments which clarified and fleshed out that duty. The timberlands of the Quinault Reservation cannot, as a practical matter, be managed by the Indian allottees. In such a case, where management functions must necessarily be performed by the Government, it seems most consistent with the scheme of the Act that the United States was to assume fiduciary obligations in the performance of its management functions. Subsequent Congresses have implicitly acknowledged the existence of such obligations. See 25 U. S. C. § 466 (instructing the Secretary of the Interior to manage Indian forests on a sustained-yield basis); §§ 323-325 (authorizing the Secretary to grant rights-of-way over Indian trust lands upon payment of just compensation); § 162a (authorizing the Secretary to manage tribal funds held in trust). The Secretary has promulgated detailed regulations governing the exercise of his powers under these statutes. While I do not say that the Government’s fiduciary responsibility necessarily conforms to the exact terms of these statutes and regulations, their existence at least points to the inference that as a matter of statute and administrative practice the Government has accepted some obligations in the management of allotted timberlands.

The remaining question is whether the Government has consented to liability in damages for the breach of these obligations. Such liability, in my view, follows naturally from the existence of a trust and of fiduciary duties. It is horn-book law that the trustee is accountable in damages for breaches of trust. See Restatement §§ 205-212; Bogert § 862; 3 Scott § 205. Moreover, it would interfere with, if not defeat, the purposes of the Act if the allottees were to be remitted to a suit for prospective, equitable relief in the protection of their rights. Absent a retrospective damages remedy, . there would be little to deter federal officials from violating their trust duties, at least until the allottees managed to obtain a judicial decree against future breaches of trust. Finally, it is noteworthy that the Department of the Interior, which as the agency charged with administering the Act is entitled to considerable deference in its interpretation of the statute, e. g., Zenith Radio Corp. v. United States, 437 U. S. 443, 450 (1978); Udall v. Tollman, 380 U. S. 1, 16 (1965), apparently disagrees with the position taken by the Solicitor General in this litigation and believes that a money damages remedy should be permitted. See Letter from Departmental Solicitor Krulitz to Assistant Attorney General Moorman, Nov. 21, 1978, reprinted in App. to Brief for Respondents la-21a.

In sum, I would find that the Act creates a bona fide trust, imposes fiduciary obligations on the United States as trustee in the management of allotted timberlands, and provides a damages remedy against the United States for breach of these obligations. The Act ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” United States v. Testan, 424 U. S., at 400, quoting Eastport S. S. Corp. v. United States, 178 Ct. Cl., at 607, 372 F. 2d, at 1009. In my view, therefore, the Court of Claims had jurisdiction over this action as one founded on an “Act of Congress,” 28 U. S. C. § 1491, and as one brought by an identifiable group of Indians and “otherwise . . . cognizable in the Court of Claims,” 28 U. S. C. § 1505. Accordingly, I respectfully dissent.

       Current statutes relevant to the Secretary’s responsibilities with respect to Indian timber resources include 25 U. S. C. § 162a (investment of funds of tribe and individual allottee); 25 U. S. C. §§ 318a, 323-325 (roads and rights-of-way); 25 U. S. C. §§ 349, 372 (issuance of fee patents to allottees or heirs found to be capable of managing their affairs); 25 U. S. C. §§ 406, 407 (sale of timber); 25 U. S. C. § 413 (collection of administrative expenses incurred on behalf of Indians); 25 U. S. C. § 466 (sustained-yield management of forests).

       For claims arising before August 13, 1946, however, the statute did waive the sovereign immunity of the United States. The Indian Claims Commission was directed to “hear and determine” such claims against the United States based on legal and equitable principles and on considerations of “fair and honorable dealings that are not recognized by any existing rule of law or equity." 25 U. S. C. § 70a.
      Contrary to respondents’ assertions, the comments of then-Representative Jackson, the sponsor of the bill that became 28 U. S. C. § 1505, do not indicate that Congress intended this statute to be a waiver of sovereign immunity for any alleged breach of trust accruing after August 13, 1946. Indeed, Representative Jackson stated that “the bill provides that with respect to all grievances that may arise hereafter Indians shall be treated on the same basis as other citizens of the United States in suits before the Court of Claims.” 92 Cong. Rec. 5313 (1946). This statement is consistent with his comment that if the bill was adopted “it will never again be necessary to pass special Indian jurisdictional acts in order to permit the Indians to secure a court adjudication on any misappropriations of Indian funds or of any other Indian property by Federal officials that might occur in the future.” Ibid. Such misappropriations could constitute takings for which just compensation is required by the Fifth Amendment, and this Court has long held that such a claim is within the jurisdiction of the Court of Claims under 28 U. S. C. § 1491. See United States v. Testan, 424 U. S. 392, 401 (1976); United States v. Creek Nation, 295 U. S. 103, 109-110 (1935); Jacobs v. United States, 290 U. S. 13, 16 (1933).

       As originally enacted, § 1 provided in pertinent part:
      “[I]n all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, . . . the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon. ...” 24 Stat. 388.
      This language has not been materially altered by amendment, and is presently codified as 25 U. S. C. § 331.
      Section 2 provided in pertinent part:
      “That all allotments set apart under the provisions of this act shall be selected by the Indians ... in such manner as to embrace the improvements of the Indians making the selection. Where the improvements of two or more Indians have been made on the same legal subdivision of land, unless they shall otherwise agree, a provisional line may be run dividing said lands between them. . . .” 24 Stat. 388.
      This provision has never been amended, and is presently codified as 25 U. S. C. § 332.

       A bill similar to the General Allotment Act of 1887 was debated in the Senate in 1881. See S. 1773, 46th Cong., 3d Sess. (1880); 11 Cong. Rec. 778-788, 873-882, 904-913, 933-943, 994-1003, 1028-1036, 1060-1070 (1881). Bills essentially identical to the Act as enacted in 1887 were passed by the Senate in 1882 and 1884, but were not acted upon by the House of Representatives. See S. 1455, 47th Cong., 1st Sess. (1882); S. 48, 48th Cong., 1st Sess. (1884). See also 13 Cong. Rec. 3212 (1882); 15 Cong. Rec. 2240-2242, 2277-2280 (1884); 16 Cong. Rec. 218, 580 (1885); H. R. Rep. No. 2247, 48th Cong., 2d Sess. (1885).

       See also 15 Cong. Rec. 2240-2242 (1884) (Sens. Dawes, Coke, and Conger); id., at 2278-2279 (Sens. Miller, Coke, and Dawes). Representative Skinner, who was the sponsor in the House of Representatives for the bill that became the Act, plainly defined the limited nature of the trust language found in § 5 in commenting on the rationale supporting both the Act's allotment of land and its provision that allottees shall be citizens of the United States:
      “The present Commissioner of Indian Affairs, who, in the line of his duty, has given these questions his most earnest thought, says in his annual report, 1885, and reiterates it in his last report, that it should be impressed upon the Indians ‘that they must abandon their tribal relation and take lands in severalty as the corner-stone of their complete success in agriculture. . . .’
      “. . . [Wjhenever a majority of the male adults on any reservation desire it the reservation can be broken up, and the lands, in certain quantities, specified in the bill, allotted in severalty to the Indians who belong on such reservation; and as soon as the allotment is made the allottee becomes a citizen of the United States, . . . and, in addition thereto, his land is made inalienable and nan-taxable for a sufficient length of time for the new citizen to become accustomed to his new life, to learn his rights as a citizen, and prepare himself to cope on an equal footing with any white man who might attempt to cheat him out of his newly acquired property. . . .
      “Giving the individual Indian a title to the land upon which he resides will have a tendency to stimulate him to work and improve his land and accumulate property. . . .” 18 Cong. Rec. 190 (1886) (emphasis added).
      Representative Perkins summarized this approach by stating that “[t]he bill provides for the breaking up, as rapidly as possible, of all the tribal organizations and for the allotment of lands to the Indians in severalty, in order that they may possess them individually and proceed to qualify themselves for the duties and responsibilities of citizenship.” Id., at 191. He asserted that one object of the bill was to enable Indians “to support themselves by industry and toil.” Ibid.

       See n. 1, supra.

       The Court of Claims did not consider the respondents’ assertion that other statutes, see n. 1, supra, render the United States liable in money damages for the mismanagement alleged in this case. Nor did the court address the respondents’ contention that the alleged mismanagement is cognizable under the Tucker Act because it involves money improperly exacted or retained. The court may, of course, consider these contentions on remand.
      The respondents make two other arguments. They assert that the special relationship between the United States and Indian tribes establishes a right to money damages for timber mismanagement. They also contend that the General Allotment Act and the Treaty of Olympia, 12 Stat. 971 (1859), create trust responsibilities on the part of the United States that constitute implied contracts within the scope of the Tucker Act. Because the respondents did not raise these contentions in the Court of Claims, we will not consider them. E. g., Adickes v. Kress & Co., 398 U. S. 144, 147, n. 2 (1970).