author: Justice Breyer

text:
    WATSON ET AL. v. PHILIP MORRIS COS., INC., ET AL.
    No. 05-1284.
    Argued April 25, 2007
    Decided June 11, 2007

      Breyer, J., delivered the opinion for a unanimous Court.

      David C. Frederick argued the cause for petitioners. With him on the briefs were Mark L. Evans, Steven Eugene Cauley, James Allen Carney, and Marcus N. Bozeman.

      Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Mark B. Stern, and Dana J. Martin.

      Theodore B. Olson argued the cause for respondents. With him on the brief were Mark A. Perry, Amir C. Tayrani, Murray R. Garnick, and Kenneth S. Geller.

       Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by Lisa Mendigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, and Michael Scodro, Deputy Solicitor General, by Linda Singer, Acting Attorney General of the District, of Columbia, and by the Attorneys General for their respective States as follows: Tails J. Colberg of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Tom Miller of Iowa, Paul J. Morrison of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler oí Maryland, Martha Coakley of Massachusetts, Michael A Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A Ayotte of New Hampshire, Stuart

        Rabner of New Jersey, Gary K. King of New Mexico, Andrew M. Cuorm of New York, Roy Cooper of North Carolina, "Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Patrick J. Crank of Wyoming; for the Campaign for Tobacco-Free Kids et al. by Matthew L. Myers; for Public Citizen, Inc., et al. by Scott L. Nelson, Brian Wolfman, Stacy Canan, Bruce Vignery, and Michael Schuster; and for Public Justice, P. C., et al. by Gerson H. Smoger, Esther E. Berezofsky, Michael J. Quirk, Arthur H. Bryant, Leslie A. Brueckner, and Jeffrey R. White.

        Michael S. Fried and Christian G. Vergonis filed a brief for Former Commissioners and Senior Staff of the Federal Trade Commission as amici curiae urging affirmance.
      Briefs of amici curiae were filed for the Blue Cross and Blue Shield Association by Anthony F. Shelley; for Defense Contractors et al. by Seth P. Waxman, Stephen W. Preston, Paul R. Q. Wo If son, and John P. Janecek; and for the Washington Legal Foundation by Katharine R. Latimer, Rebecca A. Womeldorf, Michael L. Junk, Daniel J. Popeo, and Paul D. Kamenar.

   Justice Breyer

delivered the opinion of the Court.

The federal officer removal statute permits a defendant to remove to federal court a state-court action brought against the

“United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office ....” 28 U. S. C. § 1442(a)(1) (emphasis added).

The question before us is whether the fact that a federal regulatory agency directs, supervises, and monitors a company’s activities in considerable detail brings that company within the scope of the italicized language (“acting under” an “officer” of the United States) and thereby permits removal. We hold that it does not.

I

Lisa Watson and Loretta Lawson, the petitioners, filed a civil lawsuit in Arkansas state court claiming that the Philip Morris Companies, the respondents, violated state laws prohibiting unfair and deceptive business practices. The complaint focuses upon advertisements and packaging that describe certain Philip Morris brand cigarettes (Marlboro and Cambridge Lights) as “light,” a term indicating lower tar and nicotine levels than those present in other cigarettes. More specifically, the complaint refers to the design and performance of Philip Morris cigarettes that are tested in accordance with the Cambridge Filter Method, a method that “the tobacco industry [uses] to ‘measure’ tar and nicotine levels in cigarettes.” App. to Pet. for Cert. 63a-64a. The complaint charges that Philip Morris “manipulat[ed] the design” of its cigarettes, and “[e]mploy[ed] techniques that” would cause its cigarettes “to register lower levels of tar and nicotine on [the Cambridge Filter Method] than would be delivered to the consumers of the product.” Id., at 63a-65a. The complaint adds that the Philip Morris cigarettes delivered “greater amounts óf tar and nicotine when smoked under actual conditions” than the adjective “ ‘light’ ” as used in its advertising indicates. Id., at 65a. In view of these and other related practices, the complaint concludes that Philip Morris’ behavior was “deceptive and misleading” under Arkansas law. Id., at 64a, 66a.

Philip Morris, referring to the federal officer removal statute, removed the case to Federal District Court. That court, in turn, held that the statute authorized the removal. The court wrote that the complaint attacked Philip Morris’ use of the Government’s method of testing cigarettes. For this reason (and others), it held that the petitioners had sued Philip Morris for “act[s]” taken “under” the Federal Trade Commission (FTC), a federal agency (staffed by federal “officer[s]”).

The District Court certified the question for interlocutory review. And the United States Court of Appeals for the Eighth Circuit affirmed. Like the District Court, it emphasized the FTC’s detailed supervision of the cigarette testing process. It also cited lower court cases permitting removal by heavily supervised Government contractors. See 420 F. 3d 852, 857 (2005); Winters v. Diamond Shamrock Chemical Co., 149 F. 3d 387 (CA5 1998) (authorizing removal of a tort suit against private defense contractors that manufactured Agent Orange). The Eighth Circuit concluded that Philip Morris was “acting under” federal “officer[s],” namely, the FTC, with respect to the challenged conduct. 420 F. 3d, at 854.

We granted certiorari. 549 U. S. 1162 (2007). And we now reverse the Eighth Circuit’s determination.

II

The federal statute permits removal only if Philip Morris, in carrying out the “act[s]” that are the subject of the petitioners’ complaint, was “acting under” any “agency” or “officer” of “the United States.” 28 U. S. C. § 1442(a)(1). The words “acting under” are broad, and this Court has made clear that the statute must be “liberally construed.” Colorado v. Symes, 286 U. S. 510, 517 (1932); see Arizona v. Manypenny, 451 U. S. 232, 242 (1981); Willingham v. Morgan, 395 U. S. 402, 406-407 (1969). But broad language is not limitless. And a liberal construction nonetheless can find limits in a text’s language, context, history, and purposes.

Beginning with history, we note that Congress enacted the original federal officer removal statute near the end of the War of 1812, a war that was not popular in New England. See id., at 405. Indeed, shipowners from that region filed many state-court claims against federal customs officials charged with enforcing a trade embargo with England. See Wiecek, The Reconstruction of Federal Judicial Power, 1863-1875, 13 Am. J. Legal Hist. 333, 337 (1969). Congress responded with a provision that permitted federal customs officers and “any other person aiding or assisting” those officers to remove a case filed, against them “in any state court” to federal court. Customs Act of 1815, ch. 31, §8, 3 Stat. 198 (emphasis added). This initial removal statute was “[o]bviously ... an attempt to protect federal officers from interference by hostile state courts.” Willingham, 395 U. S., at 405.

In the early 1830’s, South Carolina passed a Nullification Act declaring federal tariff laws unconstitutional and authorizing prosecution of the federal agents who collected the tariffs. See ibid. Congress then enacted a new statute that permitted “any officer of the United States, or other person,” to remove to federal court a lawsuit filed against the officer “for or on account of any act done under the revenue laws of the United States.” Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633 (emphasis added). As Senator Daniel Webster explained at the time, where state courts might prove hostile to federal law, and hence to those who enforced that law, the removal statute would “give a chance to the [federal] officer to defend himself where the authority of the law was recognised.” 9 Cong. Deb. 461 (1833).

Soon after the Civil War, Congress enacted yet another officer removal statute, permitting removal of a suit against any revenue officer “on account of any act done under color of his office” by the revenue officer and “any person acting under or by authority of any such officer.” Act of July 13, 1866, ch. 184, § 67,14 Stat. 171 (emphasis added). Elsewhere the statute restricted these latter persons to those engaged in acts “for the collection of taxes.” § 67, id., at 172.

In 1948, Congress again revised the statute, dropping its limitation to the revenue context. And it included thé rewritten statute within its 1948 recodification. See Act of June 25, 1948, ch. 646, § 1442(a), 62 Stat. 938, 28 U.S.C. § 1442(a). It is this version of the statute that, with the exception of a modification in response to this Court’s decision in International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72 (1991), is now before us. While Congress expanded the statute’s coverage to include all federal officers, it nowhere indicated any intent to change the scope of words, such as “acting under,” that described the triggering relationship between a private entity and a federal officer.

Turning to precedent, we point to three cases, all involving illegal liquor, which help to illustrate the need for, and the workings of, the pre-1948 removal statutes. In 1878, a federal revenue officer, James Davis, raided an illegal distillery in Tennessee; was ambushed by several armed men; returned the ambushers’ gunfire; and shot one of his attackers dead. See Tennessee v. Davis, 100 U. S. 257, 261 (1880). Tennessee indicted Davis for murder. The Court held that the statute permitted Davis to remove the case to federal court, reasoning that the Federal Government “can act only through its officers and agents, and they must aet within the States.” Id., at 263. Removal, the Court found, would help to prevent hostile States from “paralyz[ing]” the Federal Government and its initiatives. Ibid.

About the same time, a U. S. Army corporal (also called Davis, Lemuel Davis) along with several other soldiers helped a federal revenue officer try to arrest a distiller for violating the internal-revenue laws. The soldiers surrounded the house; the distiller escaped through a hole in a side wall; Corporal Davis shot the suspect; and South Carolina indicted Davis for murder. Davis removed the case, and this Court upheld the removal. The Court acknowledged that, although Davis was not a revenue officer, he was a person “who lawfully assist[ed]” a revenue officer “in the performance of his official duty.” Davis v. South Carolina, 107 U. S. 597, 600 (1883).

In the 1920’s, Maryland charged a group of prohibition agents and a private person acting as their driver with a murder committed during a distillery raid. See Maryland v. Soper (No. 1), 270 U. S. 9 (1926). The prohibition agents and their driver sought to remove the state murder trial to federal court. This Court ultimately rejected their removal efforts for reasons not relevant here. But in doing so it pointed out that the private person acting “as a chauffeur ‘and helper to the four officers under their orders and . . . direction” had “the same right to the benefit of” the removal provision as did the federal agents. Id., at 30.

Apart from demonstrating the dangers associated with working in the illegal alcohol business, these three cases—Tennessee v. Davis, Davis v. South Carolina, and Maryland v. Soper—illustrate that the removal statute’s “basic” purpose is to protect the Federal Government from the interference with its “operations” that would ensue were a State able, for example, to “arres[t]” and bring “to trial in a State cour[t] for an alleged offense against the law of the State,” “officers and agents” of the Federal Government “acting... within the scope of their authority.” Willingham, 395 U. S., at 406 (internal quotation marks omitted). See also ibid. (noting that the “purpose” of the statute “is not hard to discern”). State-court proceedings may reflect “local prejudice” against unpopular federal laws or federal officials. Soper, supra, at 32; see Manypenny, 451 U. S., at 242 (noting that removal permits trials to occur free from “local . . . prejudice”). In addition, States hostile to the Federal Government may impede through delay federal revenue collection or the enforcement of other federal law. See Tennessee v. Davis, supra, at 263; cf. Findley v. Satterfield, 9 F. Cas. 67, 68 (No. 4,792) (CC ND Ga. 1877). And States may deprive federal officials of a federal forum in which to assert federal immunity defenses. See International Primate Protection League, supra, at 86-87; Willingham, supra, at 407 (“[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court”); Jefferson County v. Acker, 527 U. S. 423, 447 (1999) (Scalia, J., concurring in part and dissenting in part) (noting that “the main point” of the federal officer removal statute “is to give officers a federal forum in which to litigate the merits of immunity defenses”).

Where a private person acts as an assistant to a federal official in helping that official to enforce federal law, some of these same considerations may apply. Regardless, in Davis v. South Carolina the Court wrote that the removal statute applies to private persons “who lawfully assist” the federal officer “in the performance of his official duty.” 107 U. S., at 600. And in City of Greenwood v. Peacock, 384 U. S. 808, 824 (1966), in interpreting a related removal provision, the Court repeated that the statute authorized removal by private parties “only” if they were “authorized to act with or for [federal officers or agents] in affirmatively executing duties under . . . federal law.” All the Court’s relevant post-1948 federal officer removal cases that we have found reflect or are consistent with this Court’s pre-1948 views. See Mesa v. California, 489 U. S. 121 (1989); Manypenny, supra; Willingham, supra; Peacock, supra.

III

With this history and precedent in mind, we return to the statute’s language. The relevant relationship is that of a private person “acting under” a federal “officer” or “agency.” 28 U. S. C. § 1442(a)(1) (emphasis added). In this context, the word “under” must refer to what has been described as a relationship that involves “acting in a certain capacity, considered in relation to one holding a superior position or office.” 18 Oxford English Dictionary 948 (2d ed. 1989). That relationship typically involves “subjection, guidance, or control.” Webster’s New International Dictionary 2765 (2d ed. 1953). See also Funk & Wagnalls New Standard Dictionary of the English Language 2604 (1942) (defining “under” as meaning “[subordinate or subservient to,” “[s]ubject to guidance, tutorship, or direction of”); 18 Oxford English Dictionary, supra, at 949 (“[sjubject to the instruction, direction, or guidance of”). In addition, precedent and statutory purpose make clear that the private person's “acting under” must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior. See, e. g., Davis v. South Carolina, supra, at 600; see also supra, at 149-151.

In our view, the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law. We recognize that sometimes an English speaker might say that one who complies with the law “helps” or “assists” governmental law enforcement. Taxpayers who fill out complex federal tax forms, airline passengers who obey federal regulations prohibiting smoking, for that matter well-behaved federal prisoners, all “help” or “assist” federal law enforcement authorities in some sense of those words. But that is not the sense of “help” or “assist” that can bring a private action within the scope of this statute. That is in part a matter of language. One would usually describe the behavior of the taxpayers, airline passengers, and prisoners we have described as compliance with the law (or acquiescence to an order), not as “acting under” a federal official who is giving an order or enforcing the law. It is also in part a matter of the history and the precedent we have discussed. See supra, at 147-151.

Finally, it is a matter of statutory purpose. When a company subject to a regulatory order (even a highly complex order) complies with the order, it does not ordinarily create a significant risk of state-court “prejudice.” Cf. Soper, supra, at 32; Manypenny, supra, at 241-242. Nor is a state-court lawsuit brought against such a company likely to disable federal officials from taking necessary action designed to enforce federal law. Cf. Tennessee v. Davis, 100 U. S., at 262-263. Nor is such a lawsuit likely to deny a federal forum to an individual entitled to assert a federal claim of immunity. See, e. g., Willingham, supra, at 407.

The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase “acting under” a federal “official.” And that is so even if the regulation is highly detailed and even if the private firm’s activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against private firms in many highly regulated industries. See, e.g., Federal Insecticide, Fungicide, and Rodenticide Act, 7 U. S. C. § 136a (2000 ed. and Supp. IV) (mandating disclosure of testing results in the context of pesticide registration). Neither language, nor history, nor purpose lead us to believe that Congress intended any such expansion.

IV

Philip Morris advances two important arguments to the contrary. First, it points out that lower courts have held that Government contractors fall within the terms of the federal officer removal statute, at least when the relationship between the contractor and the Government is an unusually close one involving detailed regulation, monitoring, or supervision. See, e. g., Winters, 149 F. 3d 387. And it asks why, if close supervision is sufficient to turn a private contractor into a private firm “acting under” a Government “agency” or “officer,” does it not do the same when a company is subjected to intense regulation.

The answer to this question lies in the fact that the private contractor in such cases is helping the Government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks. In the context of Winters, for example, Dow Chemical fulfilled the terms of a contractual agreement by providing the Government with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.

These circumstances distinguish Winters from this case. For present purposes that distinction is sufficient. And we need not further examine here (a case where private contracting is not at issue) whether and when particular circumstances may enable private contractors to invoke the statute.

Second, Philip Morris argues that its activities at issue here did not consist simply of compliance with regulatory laws, rules, and orders. It contends that the FTC, after initially testing cigarettes for tar and nicotine, “delegated authority” for that task to an industry-financed testing laboratory in 1987. E. g., Brief for Respondents 31 (emphasis added). And Philip Morris asserts that (along with other cigarette companies) it was acting pursuant to that delegation. It adds that ever since this initial “delegation” the FTC has “extensivefly]. .. supervis[ed]” and “closely monitored” the manner in which the laboratory tests cigarettes. Id., at 37, 30, 39. Philip Morris concludes that, given all these circumstances, just as Dow was “acting under” officers of the Department of Defense when it manufactured Agent Orange, see Winters, supra, at 399, so Philip Morris is “acting under” officers of the FTC when it conducts cigarette testing. See Brief for Respondents 38.

For argument’s sake we shall overlook the fact that the petitioners appear to challenge the way in which Philip Morris “designed” its cigarettes, not the way in which it (or the industry laboratory) conducted cigarette testing. We also shall assume the following testing-related facts that Philip Morris sets forth in its brief:

(1) In the 1950’s, the FTC ordered tobacco compames to stop advertising the amount of tar and nicotine contained in their cigarettes. See id., at 3.
(2) In 1966, the FTC altered course. It permitted cigarette companies to advertise “tar and nicotine yields” provided that the company had substantiated its statement through use of the Cambridge Filter Method, a testing method developed by Dr. Clyde Ogg, a Department of Agriculture employee. Id., at 4-5.
(3) The Cambridge Filter Method uses “a smoking machine that takes a 35 milliliter puff of two seconds’ duration on a cigarette every 60 seconds until the cigarette is smoked to a specified butt length.” FTC v. Brown & Williamson Tobacco Corp., 778 F. 2d 35, 37 (CADC 1985). It then measures the amount of tar and nicotine that is delivered. That data, in turn, determine whether a cigarette may be labeled as “light.” This method, Dr. Ogg has testified, “will not tell a smoker how much tar and nicotine he will get from any given cigarette,” but it “will indicate” whether a smoker “will get more from one than from another cigarette if there is a significant difference between the two and if he smokes the two in the same manner.” Brief for Respondents 5-6 (internal quotation marks omitted).
(4) In 1967, the FTC began to use its own laboratory to perform these tests. See id., at 6. And the Cambridge Filter Method began to be referred to as “the ‘FTC Method.’ ” Id., at 4.
(5) The FTC published the testing results periodically and sent the results annually to Congress. See id., at 7.
(6) Due to cost considerations, the FTC stopped testing cigarettes for tar and nicotine in 1987. Simultaneously, the tobacco industry assumed responsibility for cigarette testing, running the tests according to FTC specifications and permitting the FTC to monitor the process closely. See ibid.
(7) The FTC continues to publish the testing results and to send them to Congress. See ibid.
(8) The tobacco industry has followed the FTC’s requirement that cigarette manufacturers disclose (and make claims about) tar and nicotine content based exclusively on the results of this testing. See id., at 8-9.

Assuming this timeline, Philip Morris’ argument nonetheless contains a fatal flaw — a flaw of omission. Although Philip Morris uses the word “delegation” or variations many times throughout its brief, we have found no evidence of any delegation of legal authority from the FTC to the industry association to undertake testing on the Government agency’s behalf. Nor is there evidence of any contract, any payment, any employer/employee relationship, or any principal/agent arrangement.

We have examined all of the documents to which Philip Morris and certain supporting amici refer. Some of those documents refer to cigarette testing specifications, others refer to the FTC’s inspection and supervision of the industry laboratory’s testing, and still others refer to the FTC’s prohibition of statements in cigarette advertising. But none of these documents establish the type of formal delegation that might authorize Philip Morris to remove the case.

Several former FTC officials, for example, filed an amicus brief in which they state that “[i]n 198[7] the FTC delegated testing responsibility to the private Tobacco Industry Testing Lab (the ‘TITL’).” Brief for Former Commissioners and Senior Staff of the FTC 11. But in support of this proposition the brief cites a single source, a letter from the cigarette manufacturers’ lawyer to an FTC official. That letter states:

“[M]ajor United States cigarette manufacturers, who are responsible for the TITL’s operations and on whose behalf we are writing, do not believe that Commission oversight is needed .... Nevertheless, as an accommodation and in the spirit of cooperation, the manufacturers are prepared to permit Commission employees to monitor the TITL testing program . . . Letter from John P. Rupp to Judith P. Wilkenfeld (June 30, 1987), online at http://tobaccodocuments.org/nysa_ti_sl/ TI57900738.html (as visited June 7, 2007, and available in Clerk of Court’s case file).

Nothing in this letter refers to a delegation of authority. And neither Congress nor federal agencies normally delegate legal authority to private entities without saying that they are doing so.

Without evidence of some such special relationship, Philip Morris’ analogy to Government contracting breaks down. We are left with the FTC’s detailed rules about advertising, specifications for testing, requirements about reporting results, and the like. This sounds to us like regulation, not delegation. If there is a difference between this kind of regulation and, say, that of Food and Drug Administration regulation of prescription drug marketing and advertising (which also involve testing requirements), see Serono Labs., Inc. v. Shalala, 158 F. 3d 1313, 1316 (CADC 1998), that difference is one of degree, not kind.

As we have pointed out, however, differences in the degree of regulatory detail or supervision cannot ’by themselves transform Philip Morris’ regulatory compliance into the kind of assistance that might bring the FTC within the scope of the statutory phrase “acting under” a federal “officer.” Supra, at 152. And, though we find considerable regulatory detail and supervision, we can find nothing that warrants treating the FTC/Philip Morris relationship as distinct from the usual regulator/regulated relationship. This relationship, as we have explained, cannot be construed as bringing Philip Morris within the terms of the statute.

For these reasons, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    LONG ISLAND CARE AT HOME, LTD., et al. v. COKE
    No. 06-593.
    Argued April 16, 2007
    Decided June 11, 2007

      Breyer, J., delivered the opinion for a unanimous Court.

      H. Bartow Farr III argued the cause for petitioners. With him on the briefs were Richard G. Taranto and Daniel S. Alter.

      David B. Salmons argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Deputy Solicitor General Kneedler, Jonathan L. Snare, Steven J. Mandel, and Edward D. Sieger.

      Harold Craig Becker argued the cause for respondent. With him on the brief was Michael Shen

       Briefs of amici curiae urging reversal were filed for the City of New York et al. by Michael A. Cardozo, Stephen J. A. Acquario, Leonard J. Koemer, and Susan Choi-Hausman; for the Continuing Care Leadership Coaltion, Inc., et al. by Peter G. Bergmann, Kathy H. Chin, Aaron J. Schindel, John Longstreth, Joel L. Hodes, and Ellen M. Bach; for the National Association for Home Care & Hospice, Inc., by William A Dombi; and for the National Private Duty Association by Trenten P. Bausch.

      Briefs of amici curiae urging affirmance were filed for AARP et al. by Stacy Canan, Bruce Vignery, and Michael Schuster; for the Alliance for Retired Americans et al. by Jonathan P. Hiatt, James B. Coppess, Patrick J. Szymanski, and Carol R. Golubock; for Law Professors et al. by James Reif; and for the Urban Justice Center et al. by David T. Goldberg.

   Justice Breyer

delivered the opinion of the Court.

A provision of the Fair Labor Standards Act exempts from the statute’s minimum wage and maximum hours rules

“any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]).” 29 U. S. C. §213(a)(15).

A Department of Labor regulation (labeled an “interpretation”) says that this statutory exemption includes those “companionship” workers who “are employed by an employer or agency other than the family or household using their services.” 29 CFR § 552.109(a) (2006). The question before us is whether, in light of the statute’s text and history, and a different (apparently conflicting) regulation, the Department’s regulation is valid and binding. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984). We conclude that it is.

I

A

In 1974, Congress amended the Fair Labor Standards Act of 1938 (FLSA or Act), 52 Stat. 1060, to include many “domestic service” employees not previously subject to its minimum wage and maximum hour requirements. See Fair Labor Standards Amendments of 1974 (1974 Amendments), §§ 7(b)(1), (2), 88 Stat. 62 (adding 29 U. S. C. §206(f), which provides for a minimum wage for domestic service employees, and §207(¿), which extends overtime restrictions to domestic service employees). When doing so, Congress simultaneously created an exemption that excluded from FLSA coverage certain subsets of employees “employed in domestic service employment,” including babysitters “employed on a casual basis” and the companionship workers described above. § 7(b)(3), 88 Stat. 62 (codified at 29 U. S. C. § 213(a)(15)).

The Department of Labor (Department or DOL) then promulgated a set of regulations that included two regulations at issue here. The first, set forth in a subpart of the proposed regulations entitled “General Regulations,” defines the statutory term “domestic service employment” as

“services of a household nature performed by an employee in or about a private home ... of the person by whom he or she is employed ... such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use [as well as] babysitters employed on other than a casual basis.” 40 Fed. Reg. 7405 (1975) (emphasis added) (codified at 29 CFR § 552.3).

The second, set forth in a later subsection entitled “Interpretations,” says that exempt companionship workers include those

“who are employed by an employer or agency other than the family or household using their services... [whether or not] such an employee [is assigned] to more than one household or family in the same workweek . . . .” 40 Fed. Reg. 7407 (codified at 29 CFR § 552.109(a)).

This latter regulation (which we shall call the “third-party regulation”) has proved controversial in recent years. On at least three separate occasions during the past 15 years, the Department considered changing the regulation and narrowing the exemption in order to bring within the scope of the FLSA’s wage and hour coverage companionship workers paid by third parties (other than family members of persons receiving the services, who under the proposals were to remain exempt). 58 Fed. Reg. 69310-69312 (1993); 60 Fed. Reg. 46798 (1995); 66 Fed. Reg. 5481, 5485 (2001). But the Department ultimately decided not to make any change. 67 Fed. Reg. 16668 (2002).

B

In April 2002, Evelyn Coke (respondent), a domestic worker who provides “companionship services” to elderly and infirm men and women, brought this lawsuit against her former employer, Long Island Care at Home, Ltd., and its owner, Maryann Osborne (petitioners). App. 1, 19; 267 F. Supp. 2d 332, 333-334 (EDNY 2003). She alleged that petitioners failed to pay her the minimum wages and overtime wages to which she was entitled under the FLSA and a New York statute, and she sought a judgment for those unpaid wages. App. 21-22. All parties assume for present purposes that the FLSA entitles Coke to the payments if, but only if, the statutory exemption for “companionship services” does not apply to companionship workers paid by third-party agencies such as Long Island Care.. The District Court found the Department’s third-party regulation valid and controlling, and it consequently dismissed Coke’s lawsuit. 267 F. Supp. 2d, at 341.

On appeal, the Second Circuit found the Department’s third-party regulation “unenforceable” and set aside the District Court’s judgment. 376 F. 3d 118, 133, 135 (2004). Long Island Care and Osborne sought certiorari. At the Solicitor General’s suggestion, we vacated the Second Circuit’s decision and remanded the case so that the Circuit could consider a recent DOL “Advisory Memorandum” explaining (and defending) the regulation. 546 U. S. 1147 (2006); App. E to Pet. for Cert. 50a (Wage and Hour Advisory Memorandum No. 2005-1 (Dec. 1, 2005) (hereinafter Advisory Memorandum)). The Advisory Memorandum failed to convince the Second Circuit, which again held the regulation unenforceable. 462 F. 3d 48, 50-52 (2006) (per curiam). Long Island Care and Osborne again sought certiorari. And this time, we granted their petition and set the case for argument.

II

We have previously pointed out that the “‘power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.’ ” Chevron, 467 U. S., at 843 (quoting Morton v. Ruiz, 415 U. S. 199, 231 (1974); omission in. original). When an agency fills such a “gap” reasonably, and in accordance with other applicable (e.g., procedural) requirements, the courts accept the result as legally binding. 467 U. S., at 843-844; United States v. Mead Corp., 533 U. S. 218, 227 (2001).

In this ease, the FLSA explicitly leaves gaps, for example, as to the scope and definition of statutory terms such as “domestic service employment” and “companionship services.” 29 U. S. C. § 213(a)(15). It provides the Department with the power to fill these gaps through rules and regulations. ibid.; 1974 Amendments, § 29(b), 88 Stat. 76 (authorizing the Secretary of Labor “to prescribe necessary rules, regulations, and orders with regard to the amendments made by this Act”). The subject matter of the regulation in question concerns a matter in respect to which the agency is expert, and it concerns an interstitial matter, i. e., a portion of a broader definition, the details of which, as we said, Congress entrusted the agency to work out.

The Department focused fully upon the matter in question. It gave notice, it proposed regulations, it received public comment, and it issued final regulations in light of that comment. 39 Fed. Reg. 35383 (1974); 40 Fed. Reg. 7404. See Mead, supra, at 230. The resulting regulation says that employees who provide “companionship services” fall within the terms of the statutory exemption irrespective of who pays them. Since on its face the regulation seems to fill a statutory gap, one might ask what precisely is it about the regulation that might make it unreasonable or otherwise unlawful?

Respondent argues, and the Second Circuit concluded, that a thorough examination of the regulation’s content, its method of promulgation, and its context reveals serious legal problems — problems that led the Second Circuit to conclude that the regulation was unenforceable. In particular, respondent claims that the regulation falls outside the scope of Congress’ delegation; that it is inconsistent with another, legally governing regulation; that it is an “interpretive” regulation not warranting judicial deference; and that it was improperly promulgated. We shall examine each of these claims in turn.

A

.Respondent refers to the statute’s language exempting from FLSA coverage those “employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” 29 U. S. C. §213(a)(15). She claims that the words “domestic service employment” limit the provision’s scope to those workers employed by persons who themselves receive the services (or are part of that person’s household), and exclude those who are employed by “third parties.” And she advances several arguments in favor of this position.

Respondent points to the overall purpose of the 1974 Amendments, namely to extend FLSA coverage, see, e. g., H. R. Rep. No. 93-232, pp. 2, 8 (1973);,she notes that prior to the amendments the FLSA already covered companionship workers employed by certain third parties (e. g., private agencies that were large enough, in terms of annual sales, to qualify for the FLSA’s “enterprise coverage” provisions, 29 U. S. C. §§206(a), 207(a)(1) (1970 ed.), see §§203(r), (s)(l) (defining “enterprise” and “enterprise engaged in commerce or the production of goods for commerce”)); and she concludes that Congress must therefore have meant its “domestic service employment” language in the exemption to apply only to persons not employed by third parties such as Long Island Care. Respondent tries to bolster this argument by pointing to statements made by some Members of Congress during floor debates over the 1974 Amendments. See, e. g., 119 Cong. Rec. 24801 (1973) (statement of Sen. Burdick) (“I am not concerned about the professional domestic who does this as a daily living,” but rather about “people who might have an aged father, an aged mother, an infirm father, an infirm mother, and a neighbor comes in and sits with them”). And she also points to a different statute, the Social Security statute, which defines “domestic service employment” as domestic work performed in “a private home of the employer ” 26 U. S. C. § 3510(c)(1) (2000 ed.) (emphasis added; internal quotation marks omitted).

We do not find these arguments convincing. The statutory language refers broadly to “domestic service employment” and to “companionship services.” It expressly instructs the agency to work out the details of those broad definitions. And whether to include workers paid by third parties within the scope of the definitions is one of those details.

Although the FLSA in 1974 already covered some of the third-party-paid workers, it did not at that point cover others. It did not cover, for example, companionship workers employed directly by the aged person’s family; nor did it cover workers employed by many smaller private agencies. The result is that whether, or how, the definition should apply to workers paid by third parties raises a set of complex questions. Should the FLSA cover all companionship workers paid by third parties? Or should the FLSA cover some such companionship workers, perhaps those working for some (say, large but not small) private agencies, or those hired by a son or daughter to help an aged or infirm mother living in a distant city? Should it cover none? How should one weigh the need for a simple, uniform application of the exemption against the fact that some (but not all) third-party employees were previously covered? Satisfactory answers to such questions may well turn upon the kind of thorough knowledge of the, subject matter and ability to consult at length with affected parties that an agency, such as the DOL, possesses. And it is consequently reasonable to infer (and we do infer) that Congress intended its broad grant of definitional authority to the Department to include the authority to answer these kinds of questions.

Because respondent refers to the Social Security statute and the legislative history, we add that unlike the text of the Social Security statute, the text of the FLSA does not expressly answer the third-party-employment question. Compare 26 U. S. C. § 3510(c)(1) with 29 U. S. C. §213(a)(15). Nor can one find any clear answer in the statute's legislative history. Compare 119 Cong. Rec. 24801 (statement of Sen. Burdick, quoted above) with, e. g., id., at 24798 (statement of Sen. Johnston) (expressing concern that requiring payment of minimum wage to companionship workers might make such services so' expensive that some people would be forced to leave the work force in order to take care of aged or infirm parents).

B

Respondent says that the third-party regulation conflicts with the Department's “General Regulation” that defines the statutory term “domestic service employment.” Title 29 CFR § 552.3 says that the term covers services “of a household nature performed by . . . employee[s]” ranging from “maids” to “cooks” to “housekeepers” to “caretakers” and others, “in or about a private home ... of the person by whom he or she is employed.” (Emphasis added.) See also § 552.101(a). A companionship worker employed by a third party to work at the home of an aged or infirm man or woman is not working at the “home ... of the person by whom he or she is employed” (i. e., she is not working at the home of the third-party employer). Hence, the two regulations are inconsistent, for the one limits the definition of “domestic service employee” for purposes of the 29 U. S. C. §213(a)(15) exemption to workers employed by the household, but the other includes in the subclass of exempt companionship workers persons who are not employed by the household. Respondent adds that, given the conflict, the former “General Regulation” must govern (primarily because, in her view, only the former regulation is entitled to Chevron deference, an issue we address in Part II-C, infra).

Respondent is correct when she says that the literal language of the two regulations conflicts as to whether workers paid by third parties are included within the statutory exemption. The question remains, however, which regulation governs in light of this conflict. The Department, in its Advisory Memorandum, suggests that the third-party regulation governs, and we agree, for several reasons.

First, if we were to decide the contrary, i. e., that the text of the General Regulation, 29 CFR §552.3, controls on the issue of third-party employment, our interpretation would create serious problems. Although §552.3 states that it is supplying a definition of “domestic service employment” only “[a]s [that term is] used” in the statutory exemption, 29 U. S. C. §213(a)(15), the rule appears in other ways to have been meant to supply a definition of “domestic service employment” for the FLSA as a whole (a prospect the Department endorses in its Advisory Memorandum). Why else would the Department have included the extensive list of qualifying professions, virtually none of which have anything to do with the subjects of §213(a)(15), babysitting and companionship services? But if we were to apply § 552.3’s literal definition of “domestic service employment” (including the “home... of the [employer]” language) across the FLSA, that would place outside the scope of FLSA’s wage and hour rules any butlers, chauffeurs, and so forth who are employed by any third party. That result seems clearly contrary to Congress’ intent in enacting the 1974 Amendments, particularly if it would withdraw from FLSA coverage all domestic service employees previously covered by the “enterprise coverage” provisions of the Act.

If, on the other hand, § 552.3’s definition of “domestic service employment” were limited to the statute’s exemption provision, applying this definition literally (by removing all third-party employees from the exemption) would extend the Act’s coverage not simply to third-party-employed companionship workers paid by large institutions, but also to those paid directly by a family member of an elderly or infirm person receiving such services whenever the family member lived in a different household than the invalid. Nothing in the statute suggests that Congress intended to make the exemption contingent on whether a family member chose to reside in the same household as the invalid, and it is a result that respondent herself seems to wish to avoid. See Brief for Respondent 34, n. 31.

Second, normally the specific governs the general. E. g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384-385 (1992); Simpson v. United States, 435 U. S. 6, 15 (1978). The sole purpose of the third-party regulation, § 552.109(a), is to explain how the companionship services exemption applies to persons employed by third-party entities, whereas the primary (if not sole) purpose of the conflicting general definitional regulation, § 552.3, is to describe the kind of work that must be performed by someone to qualify as a “domestic service” employee. Given that context, § 552.109(a) is the more specific regulation with respect to the third-party-employment question.

Third, we concede that the Department may have interpreted these regulations differently at different times in their history. See, e. g., 58 Fed. Reg. 69311 (employees of a third-party employer qualify for the exemption only if they are also jointly employed “by the family or household using their services”); D. Sweeney, DOL Opinion Letter, Home Health Aides/Companionship Exemption, 6A LRR, Wages and Hours Manual 99:8205 (Jan. 6, 1999) (similar). But as long as interpretive changes create no unfair surprise — and the Department’s recourse to notice-and-comment rule-making in an attempt to codify its new interpretation, see 58 Fed. Reg. 69311, makes any such surprise unlikely here — the change in interpretation alone presents no separate ground for disregarding the Department’s present interpretation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988).

Fourth, we must also concede, as respondent points out, that the Department set forth its most recent interpretation of these regulations in an “Advisory Memorandum” issued only to internal Department personnel and which the Department appears to have written in response to this litigation. We have “no reason,” however, “to suspect that [this] interpretation” is merely a “‘post hoc rationalization]’” of past agency action, or that it “does not reflect the agency’s fair and considered judgment on the matter in question.” Auer v. Robbins, 519 U. S. 452, 462 (1997) (quoting Bowen, supra). Where, as here, an agency’s course of action indicates that the interpretation of its own regulation reflects its considered views — the Department has clearly struggled with the third-party-employment question since at least 1993 — we have accepted that interpretation as the agency’s own, even if the agency set those views forth in a legal brief. See 519 U. S., at 462.

For all these reasons, we conclude that the Department’s interpretation of the two regulations falls well within the principle that an agency’s interpretation of its own regulations is “controlling” unless “‘“plainly erroneous or inconsistent with”’” the regulations being interpreted. Id., at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989), in turn quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). See also Udall v. Tollman, 380 U. S. 1, 16-17 (1965).

C

Respondent also argues that, even if the third-party regulation is within the scope of the statute’s delegation, is perfectly reasonable, and otherwise complies with the law, courts still should not treat the regulation as legally binding. Her reason is a special one. She says that the regulation is an “interpretive” regulation, a kind of regulation that may be used, not to fill a statutory “gap,” but simply to describe an agency’s view of what a statute means. That kind of regulation may “persuade” a reviewing court, Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but will not necessarily “bind” a reviewing court. Cf. Mead, 533 U. S., at 232 (“interpretive rules . . . enjoy no Chevron status as a class’’ (emphasis added)).

Like respondent, the Court of Appeals concluded that the third-party regulation did not fill a statutory gap and hence was not legally binding. 376 F. 3d, at 131-133; 462 F. 3d, at 50-51. It based its conclusion upon three considerations: First, when the Department promulgated a series of regulations to implement the § 213(a)(15) exemptions, 29 CFR pt. 552, it placed the third-party regulation in Subpart B, entitled “Interpretations,” not in Subpart A, entitled “General Regulations.” Second, the Department said that regulations 552.3, .4, .5, and .6, all in Subpart A, contained the “definitions” that the statute “require[s].” Third, the Department initially said in 1974 that Subpart A would “defin[e] and delimi[t] ... the ter[m] ‘domestic service employee,’” while Subpart B would'“se[t] forth... a statement of general policy and interpretation concerning the application of the [FLSA] to domestic service employees.” 376 F. 3d, at 131-132; 462 F. 3d, at 50-51 (quoting 39 Fed. Reg. 35382).

These reasons do not convince us that the Department intended its third-party regulation to carry no special legal weight. For one thing, other considerations strongly suggest the contrary, namely that the Department intended the third-party regulation as a binding application of its rule-making authority. The regulation directly governs the conduct of members of the public, “ ‘affecting individual rights and obligations.’” Chrysler Corp. v. Brown, 441 U. S. 281, 302 (1979) (quoting Morton, 415 U. S., at 232). When promulgating the rule, the agency used full public notice-and-comment procedures, which under the Administrative Procedure Act an agency need not use when producing an “interpretive” rule. 5 U. S. C. § 553(b)(A) (exempting “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from notice- and-comment procedures). Each time the Department has considered amending the rule, it has similarly used full notice-and-comment rulemaking procedures. 58 Fed. Reg. 69310 (1993); 60 Fed. Reg. 46797 (1995); 66 Fed. Reg. 5485 (2001). And for the past 30 years, according to the Department’s Advisory Memorandum (and not disputed by respondent), the Department has treated the third-party regulation like the others, i. e., as a legally binding exercise of its rule-making authority. App. E to Pet. for Cert. 63a-64a.

For another thing, the Subpart B heading “Interpretations” (and the other indicia upon which the Court of Appeals relied) could well refer to the fact that Subpart B contains matters of detail, interpreting and applying the more general definitions of Subpart A. Indeed, Subpart B’s other regulations — involving such matters as employer “credit[s]” against minimum wage payments for provision of “food,” “lodging,” and “drycleaning,” 29 CFR § 552.100(b), and so forth— strongly indicate that such details, not a direct interpretation of the statute’s language, are at issue.

Finally, the ultimate question is whether Congress would have intended, and expected, courts to treat an agency’s rule, regulation, application of a statute, or other agency action as within, or outside, its delegation to the agency of “gap-filling” authority. Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency’s determination. See Mead, supra, at 229-233.

The three contrary considerations to which the Court of Appeals points are insufficient, in our view, to overcome the other factors we have mentioned, all of which suggest that courts should defer to the Department’s rule. And that, in our view, is what the law requires.

D

Respondent’s final claim is that the 1974 agency notice- and-comment procedure, leading to the promulgation of the third-party regulation, was legally “defective” because notice was inadequate and the Department’s explanation also inadequate. Brief for Respondent 45-47. We do not agree.

The Administrative Procedure Act requires an agency conducting notice-and-comment rulemaking to publish in its notice of proposed rulemaking “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U. S. C. § 553(b)(3). The Courts of Appeals have generally interpreted this to mean that the final rule the agency adopts must be “a logical outgrowth’ of the rule proposed.” National Black Media Coalition v. FCC, 791F. 2d 1016, 1022 (CA2 1986). See also, e. g., United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F. 2d 1189, 1221 (CADC 1980), cert. denied sub nom. Lead Industries Assn., Inc. v. Donovan, 453 U. S. 913 (1981); South Terminal Corp. v. EPA, 504 F. 2d 646, 659 (CA1 1974). The object, in short, is one of fair notice.

Initially the Department proposed a rule of the kind that respondent seeks, namely a rule that would have placed outside the exemption (and hence left subject to FLSA wage and hour rules) individuals employed by third-party employers whom the Act had covered prior to 1974. 39 Fed. Reg. 35385 (companionship workers “not exempt” if employed by a third party that already was a “covered enterprise” under the FLSA). The clear implication of the proposed rule was that companionship workers employed by third-party enterprises that were not covered by the FLSA prior to the 1974 Amendments ie. g., most smaller private agencies) would be included within the §213(a)(15) exemption.

Since the proposed rule was simply a proposal, its presence meant that the Department was considering the matter; after that consideration the Department might choose to adopt the proposal or to withdraw it. As it turned out, the Department did withdraw the proposal for special treatment of employees of “covered enterprises.” The result was a determination that exempted all third-party-employed companionship workers from the Act. We do not understand why such a possibility was not reasonably foreseeable. See, e. g., Arizona Public Serv. Co. v. EPA, 211 F. 3d 1280, 1299-1300 (CADC 2000) (notice sufficient where agency first proposed that Indian tribes be required to meet the “‘same requirements’” as States with respect to judicial review of Clean Air Act permitting actions, but then adopted a final rule that exempted tribes from certain, though not all, requirements), cert. denied sub nom. Michigan v. EPA, 532 U. S. 970 (2001).

Neither can we find any significant legal problem with the Department’s explanation for the change. The agency said that it had “concluded that these exemptions can be available to such third party employers” because that interpretation is “more consistent” with statutory language that refers to “‘any employee’ engaged ‘in’ the enumerated services” and with “prior practices concerning other similarly worded exemptions.” 40 Fed. Reg. 7405. There is no indication that anyone objected to this explanation at the time. And more than 30 years later it remains a reasonable, albeit brief, explanation. See Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. 45, 63-64 (2007).

Respondent’s only contrary argument apparently consists of her claim that the explanation does not take proper account of the statute’s reference to “domestic service employees,” which term (given the Social Security statute and legislative history) must refer only to those who are paid by the household for whom they provide services. If so, she simply repeats in different form arguments that we have already considered and rejected. See Part II-A, supra.

Ill

For these reasons the Court of Appeals’ judgment is reversed, and we remand the case for further proceedings consistent with this opinion.

It is so ordered.


author: Justice Scalia Justice Breyer,

text:
    DAVENPORT et al. v. WASHINGTON EDUCATION ASSOCIATION
    No. 05-1589.
    Argued January 10, 2007
    Decided June 14, 2007

      Scalia, J., delivered the opinion of the Court, Parts I and II-A and the second paragraph of footnote 2 of which were unanimous, and the remainder of which was joined by Stevens, Kennedy, Souter, Thomas, and Ginsburg, JJ. Breyer, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Auto, J., joined, post, p. 192.

      Robert M. McKenna, Attorney General of Washington, argued the cause for petitioners in both cases. With him on the briefs in No. 05-1657 were Maureen A. Hart, Solicitor General, William Berggren Collins, Deputy Solicitor General, Linda A. Dalton, Senior Assistant Attorney General, and D. Thomas Wendel, Assistant Attorney General. Milton L. Chappell, Glenn M. Taubman, and Steven T. O’Ban filed briefs for petitioners in No. 05-1589.

      Solicitor General Clement argued the cause for the United States in both cases as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Deputy Solicitor General Garre, Daryl Joseffer, Douglas N. Letter, August E. Flentje, Lawrence H.

      Norton, Richard B. Bader, David Kolker, Steve N. Hajjar, and Howard M. Radzely.

      John M. West argued the cause for respondent in both cases. With him on the briefs were Jeremiah A. Collins, Laurence S. Gold, Judith A. Lonnquist, and Harriet Strasberg.

       Together with No. 05-1657, Washington v. Washington Education Association, also on certiorari to the same court.

       Briefs of amici curiae urging reversal in both cases were filed for American Educators by Robert K. Kelner, Keith A Noreika, and Michael E. Paulhus; for the American Legislative Exchange Council by Donald M.'Falk; for the Campaign Legal Center by Trevor Potter, J. Gerald Hebert, and Paul S. Ryan; for the Cato Institute et al. by Erik S. Jaffe and Manual S. Klausner; for the Evergreen Freedom Foundation et al. by Eric B. Martin and Harry J. F. Korrell; for the Institute for Justice by William R. Maurer and William H. Mellor; for the National Federation of Independent Business Legal Foundation by James Bopp, Jr., and Richard E. Coleson; and for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur.

      Briefs of amici curiae urging reversal in No. 05-1657 were filed for the State of Colorado et al. by John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, and Jason Dunn, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Lawrence G. Wasden of Idaho, Jim Petro of Ohio, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia; for the Mountain States Legal Foundation by William Perry Pendley; and for the Religious Objector Members of the Northwest Professional Educators by Kevin T. Snider.

        Jonathan P. Hiatt, Laurence E. Gold, James B. Coppess, and Patrick J. Szymanski filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance in both cases.

        Patrick J. Wright filed a brief for the Mackinac Center for Public Policy as amicus curiae in both cases.

   Justice Scalia

delivered the opinion of the Court.

The State of Washington prohibits labor unions from using the agency-shop fees of a nonmember for election-related purposes unless the nonmember affirmatively consents. We decide whether this restriction, as applied to public-sector labor unions, violates the First Amendment.

I

The National Labor Relations Act leaves States free to regulate their labor relationships with their public employees. See 49 Stat. 450, as amended, 29 U. S. C. § 152(2). The labor laws of many States authorize a union and a government employer to enter into what is commonly known as an agency-shop agreement. This arrangement entitles the union to levy a fee on employees who are not union members but who are nevertheless represented by the union in collective bargaining. See, e. g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 511 (1991). The primary purpose of such arrangements is to prevent nonmembers from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred. See, e. g., Machinists v. Street, 367 U. S. 740, 760-764 (1961). However, agency-shop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of government employment. Thus, in Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235-236 (1977), we held that public-sector unions are constitutionally prohibited from using the fees of objecting nonmembers for ideological purposes that are not germane to the union’s collective-bargaining duties. And in Teachers v. Hudson, 475 U. S. 292, 302, 304-310 (1986), we set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes. Neither Hudson nor any of our other cases, however, has held that the First Amendment mandates that a public-sector union obtain affirmative consent before spending a nonmember’s agency fees for purposes not chargeable under Abood.

The State of Washington has authorized public-sector unions to negotiate agency-shop agreements. Where such agreements are in effect, Washington law allows the union to charge nonmembers an agency fee equivalent to the full membership dues of the union and to have this fee collected by the employer through payroll deductions. See, e. g., Wash. Rev. Code §§41.56.122(1), 41.59.060(2), 41.59.100 (2006). However, §42.17.760 (hereinafter §760), which is a provision of the Fair Campaign Practices Act (a state initiative approved by the voters of Washington in 1992), restricts the union’s ability to spend the agency fees that it collects. Section 760, as it stood when the decision under review was rendered, provided:

“A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.”

Respondent, the exclusive bargaining agent for approximately 70,000 public educational employees, collected agency fees from nonmembers that it represented in collective bargaining. Consistent with its responsibilities under Abood and Hudson (or so we assume for purposes of these cases), respondent sent a “Hudson packet” to all nonmembers twice a year, notifying them of their right to object to paying fees for nonchargeable expenditures, and giving them three options: (1) pay full agency fees by not objecting within 30 days; (2) object to paying for nonchargeable expenses and receive a rebate as calculated by respondent; or (3) object to paying for nonchargeable expenses and receive a rebate as determined by an arbitrator. Respondent held in escrow any agency fees that were reasonably in dispute until the Hudson process was complete.

In 2001, respondent found itself in Washington state courts defending, in two separate lawsuits, its expenditures of nonmembers’ agency fees. The first lawsuit was brought by the State of Washington, petitioner in No. 05-1657, and the second was brought as a putative class action by several nonmembers of the union, petitioners in No. 05-1589. Both suits claimed that respondent’s use of agency fees was in violation of §760. Petitioners alleged that respondent had failed to obtain affirmative authorization from nonmembers before using their agency fees for the election-related purposes specified in §760. In No. 05-1657, after a trial on the merits, the trial court found that respondent had violated § 760 and awarded the State both monetary and injunctive relief. In No. 05-1589, a different trial judge held that § 760 provided a private right of action, certified the class, and stayed further proceedings pending interlocutory appeal.

After intermediate appellate court proceedings, a divided Supreme Court of Washington held that, although a nonmember’s failure to object after receiving respondent’s “Hudson packet” did not satisfy §760’s affirmative-authorization requirement as a matter of state law, the statute’s imposition of such a requirement violated the First Amendment of the Federal Constitution. See State ex rel. Washington State Public Disclosure Comm’n v. Washington Ed. Assn., 156 Wash. 2d 543, 553-571, 130 P. 3d 352, 356-365 (2006) (en banc). The court reasoned that this Court’s agency-fee jurisprudence established a balance between the First Amendment rights of unions and of nonmembers, and that §760 triggered heightened First Amendment scrutiny because it deviated from that balance by imposing on respondent the burden of confirming that a nonmember does not object to the expenditure of his agency fees for electoral purposes. The court also held that §760 interfered with respondent’s expressive associational rights under Boy Scouts of America v. Dale, 530 U. S. 640 (2000). We granted certiorari. 548 U. S. 942 (2006).

II

The public-sector agency-shop arrangement authorizes a union to levy fees on government employees who do not wish to join the union. Regardless of one’s views as to the desirability of agency-shop agreements, see Abood, 431 U. S., at 225, n. 20, it is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. As applied to agency-shop agreements with public-sector unions like respondent, §760 is simply a condition on the union’s exercise of this extraordinary power, prohibiting expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents. The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive. Respondent concedes that Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. See Brief for Respondent 46-47. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely. See id., at 46 (citing Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525 (1949)). For the reasons that follow, we conclude that the far less restrictive limitation the voters of Washington placed on respondent’s authorization to exact money from government employees is of no greater constitutional concern.

A

The principal reason the Supreme Court of Washington concluded that §760 was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and of nonmembers, dictated that a nonmember must shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under Abood. See 156 Wash. 2d, at 557-563, 130 P. 3d, at 358-360. The court reached this conclusion primarily because our cases have repeatedly invoked the following proposition: “‘[D]issent is not to be presumed — it must affirmatively be made known to the union by the dissenting employee.’ ” Hudson, 475 U. S., at 306, n. 16 (quoting Street, 367 U. S., at 774); see also Abood, supra, at 238. The court concluded that § 760 triggered heightened First Amendment scrutiny because it deviated from this perceived constitutional balance by requiring unions to obtain affirmative consent.

This interpretation of our agency-fee cases extends them well beyond their proper ambit. Those cases were not balancing constitutional rights in the manner respondent suggests, for the simple reason that unions have no constitutional entitlement to the fees of nonmember-employees. See Lincoln Fed. Union, supra, at 529-531. We have never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as “outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirement under Abood” Keller v. State Bar of Cal., 496 U. S. 1, 17 (1990) (emphasis added). The mere fact that Washington required more than the Hudson minimum does not trigger First Amendment scrutiny. The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.

• The Supreme Court of Washington read far too much into our admonition that “dissent is not to be presumed.” We meant only that it would be improper for a court to enjoin the expenditure of the agency fees of all employees, including those who had not objected, when the statutory or constitutional limitations established in those cases could be satisfied by a narrower remedy. See, e. g., Street, supra, at 768-770, 772-775 (discussing possible judicial remedies for violation of a federal statute that forbade unions from spending objecting employees’ fees for political purposes); Abood, supra, at 235-236, 237-242 (discussing possible judicial remedies for a state statute that unconstitutionally authorized a public-sector union to spend objecting nonmembers’ agency fees for ideological purposes not germane to collective bargaining); Hudson, supra, at 302, 304-310 (setting forth procedures necessary to prevent agency-shop arrangements from violating Abood). But, as the dissenting justices below correctly recognized, our repeated affirmation that courts have an obligation to interfere with a union’s statutory entitlement no more than is necessary to vindicate the rights of nonmembers does not imply that legislatures (or voters) themselves cannot limit the scope of that entitlement.

B

Respondent defends the judgment below on a ground quite different from the mistaken rationale adopted by the Supreme Court of Washington. Its argument begins with the premise that § 760 is a limitation on how the union may spend “its” money, citing for that proposition the Washington Supreme Court’s description of § 760 as encumbering funds that are lawfully within a union’s possession. Brief for Respondent 21; 156 Wash. 2d, at 568-569, 130 P. 3d, at 363-364. Relying on that premise, respondent invokes First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), and related campaign-finance cases. It argues that, under the rigorous First Amendment scrutiny required by those cases, § 760 is unconstitutional because it applies to ballot propositions and because it does not limit equivalent election-related expenditures by corporations.

The Supreme Court of Washington’s description of §760 notwithstanding, our campaign-finance cases are not on point. For purposes of the First Amendment, it is entirely immaterial that §760 restricts a union’s use of funds only after those funds are already within the union’s lawful possession under Washington law. What matters is that public-sector agency fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees. The cases upon which respondent relies deal with governmental restrictions on how a regulated entity may spend money that has come into its possession without the assistance of governmental coercion of its employees. See, e. g., Bellotti, supra, at 767-768; Austin, supra, at 654-656. As applied to public-sector unions, § 760 is not fairly described as a restriction on how the union can spend “its” money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money.

The question that must be asked, therefore, is whether § 760 is a constitutional condition on the authorization that public-sector unions enjoy to charge government employees agency fees. Respondent essentially answers that the statute unconstitutionally draws distinctions based on the content of the union’s speech, requiring affirmative consent only for election-related expenditures while permitting expenditures for the rest of the purposes not chargeable under Abood unless the nonmember objects. The contention that this amounts to unconstitutional content-based discrimination is off the mark.

It is true enough that content-based regulations of speech are presumptively invalid. See, e. g., R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992) (citing cases). We have recognized, however, that “[t]he rationale of the general prohibition ... is that content discrimination ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.’” Id., at 387 (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991)). And we have identified numerous situations in which that risk is inconsequential, so that strict scrutiny is unwarranted. For example, speech that is obscene or defamatory can be constitutionally proscribed because the social interest in order and morality outweighs the negligible contribution of those categories of speech to the marketplace of ideas. See, e. g., R. A. V., 505 U. S., at 382-384. Similarly, content discrimination among various instances of a class of proscribable speech does not pose a threat to the marketplace of ideas when the selected subclass is chosen for the very reason that the entire class can be proscribed. See id., at 388 (confirming that governments may choose to ban only the most prurient obscenity). Of particular relevance here, our cases recognize that the risk that content-based distinctions will impermissibly interfere with the marketplace of ideas is sometimes attenuated when the government is acting in a capacity other than as regulator. Accordingly, it is well established that the government can make content-based distinctions when it subsidizes speech. See, e. g., Regan v. Taxation With Representation of Wash., 461 U. S. 540, 548-550 (1983). And it is also black-letter law that, when the government permits speech on government property that is a nonpublic forum, it can exclude speakers on the basis of their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum. See, e. g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799-800, 806 (1985).

The principle underlying our treatment of those situations is equally applicable to the narrow circumstances of these cases. We do not believe that the voters of Washington impermissibly distorted the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State’s general authorization allowing public-sector unions to acquire and spend the money of government employees. As the Supreme Court of Washington recognized, the voters of Washington sought to protect the integrity of the election process, see 156 Wash. 2d, at 563, 130 P. 3d, at 361, which the voters evidently thought was being impaired by the infusion of money extracted from nonmembers of unions without their consent. The restriction on the state-bestowed entitlement was thus limited to the state-created harm that the voters sought to remedy. The voters did not have to enact an across-the-board limitation on the use of nonmembers’ agency fees by public-sector unions in order to vindicate their more narrow concern with the integrity of the election process. We said in R. A. V. that, when totally proscribable speech is at issue, content-based regulation is permissible so long as “there is no realistic possibility that official suppression of ideas is afoot.” 505 U. S., at 390. We think the same is true when, as here, an extraordinary and totally repealable authorization to coerce payment from government employees is at issue. Even if it be thought necessary that the content limitation be reasonable and viewpoint neutral, cf. Cornelius, supra, at 806, the statute satisfies that requirement. Quite obviously, no suppression of ideas is afoot, since the union remains as free as any other entity to participate in the electoral process with all available funds other than the state-coerced agency fees lacking affirmative permission. Cf. Regan, supra, at 549-550 (First Amendment does not require the government to enhance a person’s ability to speak). In sum, given the unique context of public-sector agency-shop arrangements, the content-based nature of § 760 does not violate the First Amendment.

We emphasize an important limitation upon our holding: We uphold § 760 only as applied to public-sector unions such as respondent. Section 760 applies on its face to both public- and private-sector unions in Washington. Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. We need not answer that question today, however, because at no stage of this litigation has respondent made an overbreadth challenge. See generally Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 633-634 (1980) (applying overbreadth doctrine). Instead, respondent has consistently argued simply that § 760 is unconstitutional as applied to itself. The only purpose for which it has noted the statute’s applicability to private-sector unions is to establish that the statute was meant to be a general limitation on electoral speech, and not just a condition on state agencies’ authorization of compulsory agency fees. See Brief for Respondent 24,48. That limited contention, however, is both unconvincing and immaterial. The purpose of the voters of Washington was undoubtedly the general one of protecting the integrity of elections by limiting electoral spending in certain ways. But §760, though applicable to all unions, served that purpose through very different means depending on the type of union involved: It conditioned public-sector unions’ authorization to coerce fees from government employees at the same time that it regulated private-sector unions’ collective-bargaining agreements. The constitutionality of the means chosen with respect to private-sector unions has no bearing on whether § 760 is constitutional as applied to public-sector unions.

* * *

We hold that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes. We therefore vacate the judgment of the Supreme Court of Washington and remand the cases for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Breyer,

with whom The Chief Justice and Justice Alito join, concurring in part and concurring in the judgment.

I agree with the Court that the Supreme Court of Washington’s decision rested entirely on flawed interpretations of this Court’s agency-fee cases and our decision in Boy Scouts of America v. Dale, 530 U. S. 640 (2000). I therefore concur in the Court’s judgment, and I join Parts I and II-A and the second paragraph of footnote 2 of the Court’s opinion. However, I do not join Part II-B, which addresses numerous arguments that respondent Washington Education Association raised for the first time in its briefs before this Court. See, e. g., State ex rel. Washington State Public Disclosure Comm'n v. Washington Ed. Assn., 156 Wash. 2d 543, 565, n. 6, 130 P. 3d 352, 362, n. 6, (2006) (en banc) (noting that one of these arguments was neither raised nor addressed below). I would not address those arguments until the lower courts have been given the opportunity to address them.. See, e. g., National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 469-470 (1999).

       Washington has since amended § 760 to codify a narrower interpretation of “use” of agency-shop fees than the interpretation adopted below by the state trial court that passed on that question. See Supp. Brief for Respondent 2-3. As respondent concedes, however, id,., at 3, these cases are not moot. Because petitioners sought money damages for respondent’s alleged violation of the prior version of § 760, it still matters whether the Supreme Court of Washington was correct to hold that that version was inconsistent with the First Amendment. Our analysis of whether §760’s affirmative-authorization requirement violates the constitutional rights of respondent is not affected by the amendment, which merely causes that requirement to be applicable less frequently than the state trial court thought.

       Respondent might have had a point if, as it suggests at times, the statute burdened its ability to spend the dues of its own members. But §760 restricts solely the “use [of] agency shop fees paid by an individual who is not a member.” The only reason respondent’s use of its members’ dues was burdened is that respondent chose to commingle those dues with nonmembers’ agency fees. See App. to Pet. for Cert, in No. 05-1657, pp. 99a, 105a-107a. Respondent’s improvident accounting practices do not render §760 unconstitutional. We note as well that, given current technology, it will not likely be burdensome for any nonmember who wishes to do so to provide affirmative authorization for use of his fees for electoral expenditures.
      For similar reasons, the Supreme Court of Washington’s invocation of the union’s expressive associational rights under Boy Scouts of America v. Dale, 530 U. S. 640 (2000), was quite misplaced, as respondent basically concedes by not relying upon the case. Section 760 does not compel respondent’s acceptance of unwanted members or otherwise make union membership less attractive. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 68-69 (2006).

       Under the National Labor Relations Act, it is generally not an unfair labor practice for private-sector employers to enter into agency-shop arrangements, see 29 U. S. C. § 158(a)(3), but States retain the power under the Act to ban the execution or application of such agreements, see § 164(b).

       We do not suggest that the answer must be different. We have previously construed the authorization of private-sector agency-shop arrangements in the National Labor Relations Act in a manner that is arguably content based. See Communications Workers v. Beck, 487 U. S. 735, 738, 762-763 (1988) (§ 158(a)(3) authorizes expenditure of private-sector agency fees over a nonmember’s objection only in furtherance of the union’s obligations as exclusive bargaining representative); Ellis v. Railway Clerks, 466 U. S. 435, 450-451 (1984) (expenditures on publications that report about a union's activities as exclusive bargaining representative can be charged to nonmembers over their objection).

       Nor is it clear that the “strong medicine” of the overbreadth doctrine is even available to challenge a statute such as §760. See Virginia v. Hicks, 539 U. S. 113,118-120 (2003) (recognizing that the doctrine’s benefits — eliminating the chilling effect that overbroad laws have on nonparties — must be weighed against its costs — blocking perfectly constitutional applications of a law). It may be argued that the only other targets of the statute’s narrow prohibition, private-sector unions, are sufficiently capable of defending their own interests in court that they will not be significantly “chilled.”