author: Mr. Justice Marshall

text:
    CITY OF CHARLOTTE et al. v. LOCAL 660, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, et al.
    No. 75-250.
    Argued March 3, 1976
    Decided June 7, 1976
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Stewart, J., filed a statement concurring in the judgment, post, p. 289.

      William A. Watts argued the cause for petitioners. With him on the brief was Henry W. Underhill, Jr.

      Jonathan Wallas argued the cause for respondents. With him on the brief were J. LeVonne Chambers and Adam Stein.

        William M. Acker, Jr., and Ezra B. Perry, Jr., filed a brief for Mel Bailey, Sheriff of Jefferson County, Ala., as amicus curiae urging reversal.

   Mr. Justice Marshall

delivered the opinion of the Court.

The city of Charlotte, N. C., refuses to withhold from the paychecks of its firefighters dues owing to their union, Local 660, International Association of Firefighters. We must decide whether this refusal violates the Equal Protection Clause of the Fourteenth Amendment.

I

Local 660 represents about 351 of the 543 uniformed members of the Charlotte Fire Department. Since 1969 the union and individual members have repeatedly requested the city to withhold dues owing to the union from the paychecks of those union members who agree to a checkoff. The city has refused each request. After the union learned that it could obtain a private group life insurance policy for its membership only if it had a dues checkoff agreement with the city, the union and its officers filed suit in federal court alleging, inter alia, that the city’s refusal to withhold the dues of union members violated the Equal Protection Clause of the Fourteenth Amendment. The complaint asserted that since the city withheld amounts from its employees’ paychecks for payment to various other organizations, it could not arbitrarily refuse to withhold amounts for payment to the union.

On cross-motions for summary judgment, the District Court for the Western District of North Carolina ruled against the city. The court determined that, although the city had no written guidelines, its “practice has been to allow check offs from employees’ pay to organizations or programs as required by law or where the check off option is available to all City employees or where the check off option is available to all employees within a single employee unit such as the Fire Department.” 381 F. Supp. 500, 502 (1974). The court further found that the city has “not allowed check off options serving only single employees or programs which are not available either to all City employees or to all employees engaged in a particular section of City employment.” Ibid. Finding, however, that withholding union dues from the paychecks of union members would be no more difficult than processing any other deduction allowed by the city, the District Court concluded that the city had not offered a rational explanation for its refusal to withhold for the union. Accordingly, the District Court held that the city’s refusal to withhold moneys when requested to do so by the respondents for the benefit of Local 660 “constitutes a violation of the individual [respondents’] rights to equal protection of laws under the Fourteenth Amendment.” Id., at 502-503. The court ordered that so long as the city continued “without clearly stated and fair standards, to withhold moneys from the paychecks of City employees for other purposes,” it was enjoined from refusing to withhold union dues from the paychecks of the respondents. Id., at 503. The Court of Appeals for the Fourth Circuit affirmed, 518 F. 2d 83 (1975), and we granted certiorari. 423 U. S. 890 (1975). We reverse.

II

Since it is not here asserted — and this Court would reject such a contention if it were made — that respondents’ status as union members or their interest in obtaining a dues checkoff is such as to entitle them to special treatment under the Equal Protection Clause, the city’s practice must meet only a relatively relaxed standard of reasonableness in order to survive constitutional scrutiny.

The city presents three justifications for its refusal to allow the dues checkoff requested by respondents. First, it argues, North Carolina law makes it illegal for the city to enter into a contract with a municipal union, N. C. Gen. Stat. § 95-98 (1975), and an agreement with union members to provide a dues checkoff, with the union as a third-party beneficiary, would in effect be such a contract. See 40 N. C. Op. Atty. Gen. 591 (1968-1970). Thus, compliance with the state law, and with the public policy it represents of discouraging dealing with municipal unions, is said to provide a sufficient basis for refusing respondents’ request. Second, it claims, a dues checkoff is a proper subject of collective bargaining, which the city asserts Congress may shortly require of state and local governments. Under this theory, the desire to preserve the checkoff as a bargaining chip in any future collective-bargaining process is in itself an adequate basis for the refusal. Lastly, the city contends, allowing withholding only when it benefits all city or departmental employees is a legitimate method for avoiding the burden of withholding money for all persons or organizations that request a checkoff. Because we find that this explanation provides a sufficient justification for the challenged practice, we have no occasion to address the first two reasons proffered.

The city submitted affidavits to show that it would be unduly burdensome and expensive for it to withhold money for every organization or person that requested it, App. 17, 45, 55, and respondents did not contest this showing. As respondents concede, it was therefore reasonable, and permissible under the Equal Protection Clause, for the city to develop standards or restrictions to determine who would be eligible for withholding. Mathews v. Diaz, ante, at 82-83. See Brief for Respondents 9. Within the limitations of the Equal Protection Clause, of course, the choice of those standards is for the city and not for the courts. Thus, our inquiry is not whether standards might be drawn that would include the union but whether the standards that were drawn were reasonable ones with “some basis in practical experience.” South Carolina v. Katzenbach, 383 U. S. 301, 331 (1966). Of course, the fact that the standards were drawn and applied in practice rather than pursuant to articulated guidelines is of no import for equal protection purposes.

The city allows withholding for taxes, retirement-insurance programs, savings programs, and certain charitable organizations. These categories, the District Court found, are those in which the checkoff option can, or must, be availed of by all city employees, or those in an entire department. Although the District Court found that this classification did not present a rational basis for rejecting respondents’ requests, 381 F. Supp., at 502, we disagree. The city has determined that it will provide withholding only for programs of general interest in which all city or departmental employees can, without more, participate. Employees can participate in the union checkoff only if they join an outside organization— the union. Thus, Local 660 does not fit the category of groups for which the city will withhold. We cannot say that denying withholding to associational or special interest groups that claim only some departmental employees as members and that employees must first join before being eligible to participate in the checkoff marks an arbitrary line so devoid of reason as to violate the Equal Protection Clause. Rather, this division seems a reasonable method for providing the benefit of withholding to employees in their status as employees, while limiting the number of instances of withholding and the financial and administrative burdens attendant thereon.

Given the permissibility of creating standards and the reasonableness of the standards created, the District Court’s conclusion that it would be no more difficult for the city to withhold dues for the union than to process other deductions is of no import. We may accept, arguendo, that the difficulty involved in processing any individual deduction is neither great nor different in kind from that involved in processing any other deduction. However, the city has not drawn its lines in order to exclude individual deductions, but in order to avoid the cumulative burden of processing deductions every time a request is made; and inherent in such a line-drawing process are difficult choices and “some harsh and apparently arbitrary consequences . . . .” Mathews v. Diaz, ante, at 83. See ante, at 82-84; Dandridge v. Williams, 397 U. S. 471, 485 (1970). Cf. Schilb v. Kuebel, 404 U. S. 357, 364 (1971); Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955).

Respondents recognize the legitimacy of such a process and concede that the city “is free to develop fair and reasonable standards to meet any possible cost problem.” Brief for Respondents 9. Respondents have wholly failed, however, to present any reasons why the present standards are not fair and reasonable — other than the fact that the standards exclude them. This fact, of course, is insufficient to transform the city policy into a constitutional violation. Since we find a reasonable basis for the challenged classification, the judgment of the Court of Appeals for the Fourth Circuit must be reversed, and the case remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Stewart concurs in the judgment upon the ground that the classification challenged in this case is not invidiously discriminatory and does not, therefore, violate the Equal Protection Clause of the Fourteenth Amendment.

       Respondents brought suit under 42 U. S. C. § 1983, grounding jurisdiction in 28 U. S. C. §§ 1331 and 1343. As the Court of Appeals noted, insofar as the suit was brought against the city of Charlotte and the Charlotte City Council, the District Court was without jurisdiction under § 1343 since a municipal corporation is not a “person” within the meaning of § 1983. City of Kenosha v. Bruno, 412 U. S. 507 (1973). We need not decide whether respondents’ allegation of $10,000 in damages was sufficient to confer § 1331 jurisdiction over the city and city council, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); Bell v. Hood, 327 U. S. 678 (1946); Note, 89 Harv. L. Rev. 922 (1976), since respondents also sued the individual members of the city council and the District Court unquestionably had jurisdiction under § 1343 to consider those claims. See Lynch v. Household Finance Cory., 405 U. S. 538 (1972). For convenience, we shall refer to all the petitioners collectively as the “city.”
      The District Court granted the city’s motion to dismiss the complaint with respect to the union, the Court of Appeals affirmed, and certiorari was not sought on this ruling. Relief was granted only to the union officers who, in their capacity as city employees, had been denied a dues checkoff.

        Memorial Hospital v. Maricopa County, 415 U. S. 250, 253-254 (1974); Dunn v. Blumstein, 405 U. S. 330, 335 (1972); Kramer v. Union School Dist., 395 U. S. 621, 626 (1969); Williams v. Rhodes, 393 U. S. 23, 30 (1968).

       The following payroll deductions are required by law: (a) federal income tax; (b) state income tax; (c) North Carolina Firemen’s Retirement System; (d) North Carolina Local Government Employees Retirement System; (e) city, county, and state tax levies.
      The following deductions are permitted for all city employees:
      (a) United States Savings Bonds; (b) medical and life insurance;
      (c) Aetna Deferred Compensation Plan (a savings program);
      (d) United Way.
      The following deductions are permitted for all firemen: (a) Firemen’s Benefit Fund (a group life insurance program); (b) Firemen’s Credit Union (a savings and loan program); (e) Firemen’s Voluntary Pledge Fund (a special withholding providing benefits to the survivors of deceased firemen).


source: Caselaw Access Project

author: Mr. Justice Powell Mr. Justice White,

license: Public Domain

text:
    NADER v. ALLEGHENY AIRLINES, INC.
    No. 75-455.
    Argued March 24, 1976
    Decided June 7, 1976

      Powell, J., delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, post, p. 308.

      Reuben B. Robertson III argued the cause for petitioner. With him on the briefs was Alan B. Morrison.

      E. Barrett Prettyman, Jr., argued the cause for respondent. With him on the briefs were Frank F. Roberson and William A. Bradford, Jr.

        Donald C. Comlish and Robert Glosser filed a brief for the Air Transport Association of America as amicus curiae.

   Mr. Justice Powell

delivered the opinion of the Court.

In this case we address the question whether a common-law tort action based on alleged fraudulent misrepresentation by an air carrier subject to regulation by the Civil Aeronautics Board (Board) must be stayed pending reference to the Board for determination whether the practice is “deceptive” within the meaning of § 411 of the Federal Aviation Act of 1958, 72 Stat. 769, 49 U. S. C. § 1381. We hold that under the circumstances of this case a stay pending reference is inappropriate.

I

The facts are not contested. Petitioner agreed to make several appearances in Connecticut on April 28, 1972, in support of the fundraising efforts of the Connecticut Citizen Action Group (CCAG), a nonprofit public interest organization. His two principal appearances were to be at a noon rally in Hartford and a later address at the Storrs campus of the University of Connecticut. On April 25, petitioner reserved a seat on respondent’s flight 864 for April 28. The flight was scheduled to leave Washington, D. C., at 10:15 a. m. and to arrive in Hartford at 11:15 a. m. Petitioner’s ticket was purchased from a travel agency on the morning of the flight. It indicated, by the standard “OK” notation, that the reservation was confirmed.

Petitioner arrived at the boarding and check-in area approximately five minutes before the scheduled departure time. He was informed that all seats on the flight were occupied and that he, like several other passengers who had arrived shortly before him, could not be accommodated. Explaining that he had to arrive in Hartford in time for the noon rally, petitioner asked respondent’s agent to determine whether any standby passengers had been allowed to board by mistake or whether anyone already on board would voluntarily give up his or her seat. Both requests were refused. In accordance with respondent’s practice, petitioner was offered alternative transportation by air taxi to Philadelphia, where connections could be made with an Allegheny flight scheduled to arrive in Hartford at 12:15 p. m. Fearing that the Philadelphia connection, which allowed only 10 minutes between planes, was too close, petitioner rejected this offer and elected to fly to Boston, where he was met by a CCAG staff member who drove him to Storrs.

Both parties agree that petitioner’s reservation was not honored because respondent had accepted more reservations for flight 864 than it could in fact accommodate. One hour prior to the flight, 107 reservations had been confirmed for the 100 seats actually available. Such overbooking is a common industry practice, designed to ensure that each flight leaves with as few empty seats as possible despite the large number of “no-shows” — reservation-holding passengers who do not appear at flight time. By the use of statistical studies of no-show patterns on specific flights, the airlines attempt to predict the appropriate number of reservations necessary to fill each flight. In this way, they attempt to ensure the most efficient use of aircraft while preserving a flexible booking system that permits passengers to cancel and change reservations without notice or penalty. At times the practice of overbooking results in oversales, which occur when more reservation-holding passengers than can be accommodated actually appear to board the flight. When this occurs, some passengers must be denied boarding (“bumped”)- The chance that any particular passenger will be bumped is so negligible that few prospective passengers aware of the possibility would give it a second thought. In April 1972, the month in which petitioner’s reservation was dishonored, 6.7 confirmed passengers per 10,000 enplanements were denied boarding on domestic flights. For all domestic airlines, oversales resulted in bumping an average of 5.4 passengers per 10,000 enplanements in 1972, and 4.6 per 10,000 enplanements in 1973. In domestic operations respondent oversold 6.3 seats per 10,000 enplanements in 1972 and 4.5 seats per 10,000 enplanements in 1973. Thus, based on the 1972 experience of all domestic airlines, there was only slightly more than one chance in 2,000 that any particular passenger would be bumped on a given flight. Nevertheless, the total number of confirmed ticket holders denied seats is quite substantial, numbering over 82,000 passengers in 1972 and about 76,000 in 1973.

Board regulations require each airline to establish priority rules for boarding passengers and to offer “denied boarding compensation” to bumped passengers. These “liquidated damages” are equal to the value of the passenger’s ticket with a $25 minimum and a $200 maximum. 14 CFR §250.5 (1975). Passengers are free to reject the compensation offered in favor of a common - law suit for damages suffered as a result of the bumping. Petitioner refused the tender of denied boarding compensation ($32.41 in his case) and, with CCAG, filed this suit for compensatory and punitive damages. His suit did not seek compensation for the bumping per se but asserted two other bases of liability: a common-law action based on fraudulent misrepresentation arising from respondent’s alleged failure to inform petitioner in advance of its deliberate overbooking practices, and a statutory action under § 404 (b) of the Act, 49 U. S. C. § 1374 (b), arising from respondent’s alleged failure to afford petitioner the boarding priority specified in its rules filed with the Board under 14 CFR § 250.3 (1975).

The District Court entered a judgment for petitioner on both claims, awarding him a total of $10 in compensatory damages and $25,000 in punitive damages. Judgment also was entered for CCAG on its misrepresentation claim, with an award of $51 in compensatory damages and $25,000 in punitive damages.

The Court of Appeals for the District of Columbia Circuit reversed. 167 U. S. App. D. C. 350, 512 F. 2d 527 (1975). A number of its rulings were not presented to this Court in the petition for certiorari. The award of damages to CCAG was reversed on the ground that the organization was too “remote from the transaction” to fall “within the class of persons who may recover.” Id., at 372, 512 F. 2d, at 549. The merits of petitioner’s statutory claim were remanded for further findings. The award of punitive damages to petitioner on the statutory claim was reversed on the ground that respondent’s conduct contained no “elements of intentional wrongdoing or conscious disregard for” petitioner’s rights. Id., at 373, 512 F. 2d, at 550. The question of punitive damages for the common-law claim was remanded for further findings on respondent’s good faith. In particular, the trial court was to consider “whether Allegheny reasonably believed that its policies were completely lawful and in fact carried the approval of the Board.” Id., at 374, 512 F. 2d, at 551. None of these rulings was presented to this Court in the petition for certiorari.

The only issue before us concerns the Court of Appeals’ disposition on the merits of petitioner’s claim of fraudulent misrepresentation. Although the court rejected respondent’s argument that the existence of the Board’s cease-and-desist power under § 411 of the Act eliminates all private remedies for common-law torts arising from unfair or deceptive practices by regulated carriers, it held that a determination by the Board that a practice is not deceptive within the meaning of § 411 would, as a matter of law, preclude a common-law tort action seeking damages for injuries caused by that practice. Therefore, the court held that the Board must be allowed to determine in the first instance whether the challenged practice (in this case, the alleged failure to disclose the practice of overbooking) falls within the ambit of § 411. The court took judicial notice that a rulemaking proceeding concerning possible changes in reservation practices in response to the 1973-1974 fuel crisis was already underway and that a challenge to the carriers’ overbooking practices had been raised by an intervenor in that proceeding. The District Court was instructed to stay further action on petitioner’s misrepresentation claim pending the outcome of the rulemaking proceeding. The Court of Appeals characterized its holding as “but another application of the principles of primary jurisdiction, a doctrine whose purpose is the coordination of the workings of agency and court.” 167 U. S. App. D. C., at 367, 512 F. 2d, at 544.

II

The question before us, then, is whether the Board must be given an opportunity to determine whether respondent’s alleged failure to disclose its practice of deliberate overbooking is a deceptive practice under § 411 before petitioner’s common-law action is allowed to proceed. The decision of the Court of Appeals requires the District Court to stay the action brought by petitioner in order to give the Board an opportunity to resolve the question. If the Board were to find that there had been no violation of § 411, respondent would be immunized from common-law liability.

A

Section 1106 of the Act, 49 U. S. C. § 1506, provides that “[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” The Court of Appeals found that “although the saving clause of section 1106 purports to speak in absolute terms it cannot be read so literally.” 167 U. S. App. D. C., at 367, 512 F. 2d, at 544. In reaching this conclusion, it relied on Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1907). In that case, the Court, despite the existence of a saving clause virtually identical to § 1106, refused to permit a state-court common-law action challenging a published carrier rate as “unjust and unreasonable.” The Court conceded that a common-law right, even absent a saving clause, is not to be abrogated “unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.” 204 U. S., at 437. But the Court found that the continuance of private damages actions attacking the reasonableness of rates subject to the regulation of the Interstate Commerce Commission would destroy the purpose of the Interstate Commerce Act, which was to eliminate discrimination by requiring uniform rates. The saving clause, the Court found, “cannot in reason be construed as continuing in shippers a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.” Id., at 446.

In this case, unlike Abilene, we are not faced with an irreconcilable conflict between the statutory scheme and the persistence of common-law remedies. In Abilene the carrier, if subject to both agency and court sanctions, would be put in an untenable position when the agency and a court disagreed on the reasonableness of a rate. The carrier could not abide by the rate filed with the Commission, as required by statute, and also comply with a court's determination that the rate was excessive. The conflict between the court’s common-law authority and the agency’s ratemaking power was direct and unambiguous. The court in the present case, in contrast, is not called upon to substitute its judgment for the agency’s on the reasonableness of a rate — or, indeed, on the reasonableness of any carrier practice. There is no Board requirement that air carriers engage in overbooking or that they fail to disclose that they do so. And any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental. Under the circumstances, the common-law action and the statute are not “absolutely inconsistent” and may coexist, as contemplated by § 1106.

B

Section 411 of the Act allows the Board, where “it considers that such action . . . would be in the interest of the public,” “upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent,” to “investigate and determine whether any air carrier . . . has been or is engaged in unfair or deceptive practices or unfair methods of competition . . . .” Practices determined to be in violation of this section “shall” be the subject of a cease-and-desist order. The Court of Appeals concluded — and respondent does not challenge the conclusion here — that this section does not totally preclude petitioner’s common-law tort action. But the Court of Appeals also held, relying on the nature of the airline industry as “a regulated system of limited competition,” American Airlines, Inc. v. North American Airlines, Inc., 351 U. S. 79, 84 (1956), aiid the Board’s duty to promote “adequate, economical, and efficient service,” § 102 (c) of the Act, 49 U. S. C. § 1302 (c), “at the lowest cost consistent with the furnishing of such service,” § 1002 (e)-(2) of the Act, 49 U. S. C. § 1482 (e) (2), that the Board has the power in a § 411 proceeding to approve practices that might otherwise be considered deceptive and thus to immunize carriers from common-law liability. 167 U. S. App. D. C., at 366, 512 F. 2d, at 543.

We cannot agree. No power to immunize can be derived from the language of § 411. And where Congress has sought to confer such power it has done SO' expressly, as in § 414 of the Act, 49 U. S. C. § 1384, which relieves those affected by certain designated orders (not including orders issued under § 411) “from the operations of the 'antitrust laws.’ ” When faced with an exemptive provision similar to § 414 in United States Navigation Co. v. Cunard S. S. Co., 284 U. S. 474 (1932), this Court dismissed an antitrust action because initial consideration by the agency had not been sought. The Court pointed out that the Act in question was “restrictive in its operation upon some of the activities of common carriers . . . , and permissive in respect of others.” Id., at 485. See also Far East Conference v. United States, 342 U. S. 570 (1952). Section 411, in contrast, is purely restrictive. It contemplates the elimination of “unfair or deceptive practices” that impair the public interest. Its role has been described in American Airlines, Inc. v. North American Airlines, Inc., supra, at 85:

“ ‘Unfair or deceptive practices or unfair methods of competition/ as used in § 411, are broader concepts than the common-law idea of unfair competition. . . . The section is concerned not with punishment of wrongdoing or protection of injured competitors, but rather with protection of the public interest.”

As such, § 411 provides an injunctive remedy for vindication of the public interest to supplement the compensatory common-law remedies for private parties preserved by § 1106.

Thus, a violation of § 411, contrary to the Court of Appeals5 conclusion, is not coextensive with a breach of duty under the common law. We note that the Board’s jurisdiction to initiate an investigation under § 411 is expressly premised on a finding that the “public interest” is involved. The Board “may not employ its powers to vindicate private rights.” 351 U. S., at 83. Indeed, individual consumers are not even entitled to initiate proceedings under § 411, a circumstance that indicates that Congress did not intend to require private litigants to obtain a § 411 determination before they could proceed with the common-law remedies preserved by § 1106. Cf. Rosado v. Wyman, 397 U. S. 397, 406 (1970).

Section 411 is both broader and narrower than the remedies available at common law. A cease-and-desist order may issue under § 411 merely on the Board’s conclusion, after an investigation determined to be in the public interest, that a carrier is engaged in an “unfair or deceptive practice.” No findings that the practice was intentionally deceptive or fraudulent or that it in fact has caused injury to an individual are necessary. American Airlines, Inc. v. North American Airlines, Inc., supra, at 86. On the other hand, a Board decision that a cease-and-desist order is inappropriate does not represent approval of the practice under investigation. It may merely represent the Board’s conclusion that the serious prohibitory sanction of a cease-and-desist order is inappropriate, that a more flexible approach is necessary. A wrong may be of the sort that calls for compensation to an injured individual without requiring the extreme remedy of a cease-and-desist order. Indeed, the Board, in dealing with the problem of overbooking by air carriers, has declined to issue cease-and-desist orders, despite the determination by an examiner in one case that a § 411 violation had occurred. Instead, the Board has elected to establish boarding priorities and to ensure that passengers will be compensated' for being bumped either by a liquidated sum under Board regulations or by resort to a suit for compensatory damages at common law.

In sum, § 411 confers upon the Board a new and powerful weapon against unfair and deceptive practices that injure the public. But it does not represent the only, or best, response to all challenged carrier actions that result in private wrongs.

C

The doctrine of primary jurisdiction “is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R. Co., 352 U. S. 59, 63 (1956). Even when common-law rights and remedies survive and the agency in question lacks the power to confer immunity from common-law liability, it may be appropriate to refer specific issues to an agency for initial determination where that procedure would secure “[ujniformity and consistency in the regulation of business entrusted to a particular agency” or where

“the limited functions of review by the judiciary [would be] more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Far East Conference v. United States, 342 U. S., at 574-575.

See also United States v. Western Pacific R. Co., supra, at 64.

The doctrine has been applied, for example, when an action otherwise within the jurisdiction of the court raises a question of the validity of a rate or practice included in a tariff filed with an agency, e. g., Danna v. Air France, 463 F. 2d 407 (CA2 1972); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411, 417-418 (1959), particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency — such as matters turning on an assessment of industry conditions, e. g., United States v. Western Pacific R. Co., supra, at 66-67. In this case, however, considerations of uniformity in regulation and of technical expertise do not call for prior reference ;to the Board.

Petitioner seeks damages for respondent’s failure to disclose its overbooking practices. He makes no challenge to any provision in the tariff, and indeed there is no tariff provision or Board regulation applicable to disclosure practices. Petitioner also makes no challenge, comparable to those made in Southwestern Sugar & Molasses Co. v. River Terminals Corp., supra, and Lichten v. Eastern Airlines, Inc., 189 F.. 2d 939 (CA2 1951), to limitations on common-law damages imposed through exculpatory clauses included in a tariff.

Referral of the misrepresentation issue to the Board cannot be justified by the interest in informing the court’s ultimate decision with “the expert and specialized knowledge,” United States v. Western Pacific R. Co., supra, at 64, of the Board. The action brought by petitioner does not turn on a determination of the reasonableness of a challenged practice — a determination that could be facilitated by an informed evaluation of the economics or technology of the regulated industry. The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards to the facts of this case.

We are particularly aware that, even where the wrong sought to be redressed is not misrepresentation but bumping itself, which has been the subject of Board consideration and for which compensation is provided in carrier tariffs, the Board has contemplated that there may be individual adjudications by courts in common-law suits brought at the option of the passenger. The present regulations dealing with the problems of overbooking and oversales were promulgated by the Board in 1967. They provide for denied boarding compensation to bumped passengers and require each carrier to establish priority rules for seating passengers and to file reports of passengers who could not be accommodated. The order instituting these regulations contemplates that the bumped passenger will have a choice between accepting denied boarding compensation as “liquidated damages for all damages incurred ... as a result of the carrier’s failure to provide the passenger with confirmed reserved space,” or pursuing his or her common-law remedies. The Board specifically provided for a 30-day period before the specified compensation need be accepted so that the passenger will not be forced to make a decision before “the consequences of denied boarding have occurred and are known.” After evaluating the consequences, passengers may choose as an alternative “to pursue their remedy under the common law.”

III

We conclude that petitioner’s tort action should not be stayed pending reference to the Board and accordingly the decision of the Court of Appeals on this issue is reversed. The Court of Appeals did not address the question whether petitioner had introduced sufficient evidence to sustain his claim. We remand the case for consideration of that question and for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice White,

concurring.

I join the Court’s opinion with these additional words.

It may be that under its rulemaking authority the Board would have power to order airline overbooking and to pre-empt recoveries under state law for undisclosed overbooking or for overselling. But it has not done so, at least as yet. It is also unnecessary to stay proceedings on the present state-law claim pending Board action under § 411. Neither an order denying nor one granting relief under that section would foreclose claims based on state law; and there is not present here the additional consideration that a § 411 proceeding would be helpful in resolving, or affecting in some manner, the state-law claim for compensatory and punitive damages. Cf. Ricci v. Chicago Mercantile Exchange, 409 U. S. 289 (1973); Chicago Mercantile Exchange v. Deak tor, 414 U. S. 113 (1973). I seriously doubt that any pending or future § 411 case would reveal anything relevant to this case about the Board's view of the propriety of overbooking and of overselling that is not already apparent from prior proceedings concerning those subjects.

       Brief for Civil Aeronautics Board as Amicus Curiae filed in Court of Appeals, App. B, p. 58.

        Id., at 50

        Id., at 51.

       On any given flight, of course, the chance that a passenger will be bumped may be higher or lower than the overall average.

         Id., at 50.

       Section 404 (b) provides:
      “No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.”

       Section 411 provides in full:
      “The Board may, upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent, if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier, foreign air carrier, or ticket agent has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air carrier, foreign air carrier, or ticket agent is engaged in such unfair or deceptive practices or unfair methods of competition, it shall order such air carrier, foreign air carrier, or ticket agent to cease and desist from such practices or methods of competition.”

       The rulemaking proceedings were initiated in January 1974. Emergency Reservation Practices Investigation, 39 Fed. Reg. 823 (1974) (CAB Order 73-12-93, EDR-260). An opinion and an order were issued on April 13, 1976. Emergency Reservation Practices Investigation (CAB Order 76-4-55). The Board concluded that the questions raised by the Court of Appeals in this case were "outside the scope of [the] investigation.” Id., at 7. It specifically noted that “the question of whether intentional overbooking, in general, or nondisclosure of such practice, in particular, is a deceptive trade practice” was not at issue. Id., at 8.
      In April 1976 the Board announced a proposed rulemaking proceeding with respect to deliberate overbooking and oversales. Priority Rules, Denied-Boarding Compensation Tariffs and Reports of Unaccommodated Passengers: Reexamination of thé Board’s Policies Concerning Deliberate Overbooking and Oversales, 41 Fed. Reg. 16478 (1976) (CAB Order EDR-296). The Board has decided to re-evaluate existing practices in light of a recent "trend toward a higher rate of oversales” and in fight of the fact that oversales “continue to be a significant cause of [consumer] complaints.” Ibid. Among the options to be considered is a requirement that the practice of deliberate overbooking, if allowed to continue, be disclosed to customers. Id., at 16479.

       The Court later described the saving clause discussed in Abilene as follows:
      “That proviso was added at the end of the statute, — not to nullify other parts of the Act, or to defeat rights or remedies given by preceding sections, — but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a state court, recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common law duties and the like.” Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 129-130 (1915).

       Cf. Federal Trade Comm’n v. Klesner, 280 U. S. 19, 25-26 (1929); Holloway v. Bristol-Myers Corp., 158 U. S. App. D. C. 207, 212, 485 F. 2d 986, 991 (1973) (both opinions discuss § 5 of the Federal Trade Commission Act, 38 Stat. 717, as amended, 15 U. S. C. § 45, which this Court, in American Airlines, Inc. v. North

        American Airlines, Inc., 351 U. S., at 82, described as the model for §411).

         In the late 1950’s, § 411 investigations were initiated against two carriers charged with deliberate overbooking. One of these investigations was terminated on the ground that the record showed no deliberate overbooking by the carrier. Eastern Air Lines Overbooking Enforcement Proceeding, 30 C. A. B. 862 (1960). The other was terminated, after a finding by the examiner of a §411 violation, in favor of an industrywide investigation. National Airlines, Inc., Enforcement Proceeding, 31 C. A. B. 390 (1960).

       See nn. 15-18 and accompanying text, infra.

       In 1965, the Board proposed a rule requiring carriers to notify individual passengers of overbooked conditions 12 hours prior to the scheduled departure time. Passenger Priorities and Overbooked Flights: Notice of Proposed Rule Making, 30 Fed. Reg. 13236 (1965) (CAB Order EDR-95). This proposal subsequently was abandoned after industry opposition on the ground that it was excessively rigid and unworkable. Priority Rules, Denied Boarding Compensation Tariffs, And Reports of Unaccommodated Passengers: Notice of Proposed Rule Making, 32 Fed. Reg. 459, 460-461 (1967) (CAB Order EDR-109).
      The Board’s abandonment of this proposal cannot be read as blanket approval of failure to make a public disclosure of overbooking practices. The cost of an individual notification program in terms of expense, public relations, and passenger confusion could be prohibitive. But alternative means of disclosure may be significantly less disruptive. Petitioner suggests, for example, that carrier overbooking practices be included in tariffs, which are required to be available for public inspection. And the Board has approved an innovative approach suggested by Eastern Air Lines, which provides for a system of limited overbooking in which passengers subject to possible denial of boarding are advised at the outset of their status. See Delta Air Lines, Inc. v. CAB, 147 U. S. App. D. C. 272, 455 F. 2d 1340 (1971) (aff’g CAB Order 71-6-120).

       For example, if respondent’s overbooking practices were detailed in its tariff and therefore available to the public, a court presented with a claim of misrepresentation based on failure to disclose need not make prior reference to the Board, as it should if presented with a suit challenging the reasonableness of practices detailed in a tariff. Rather, the court could, applying settled principles of tort law, determine that the tariff provided sufficient notice to the party who brought the suit — as, indeed, petitioner suggests it would. Reply Brief for Petitioner 3-4, n. 3.

       Priority Rules, Denied Boarding Compensation Tariffs and Reports of Unaccommodated Passengers, 32 Fed. Reg. 11939 (1967) (CAB Order ER-503). See 14 CFR §250.1 et seq. (1975).

       CAB Order ER-503, supra, 32 Fed. Reg. 11943.

        Id., at 11942.

       Foreign Air Carriers: Priority Rules, Denied Boarding Compensation Tariffs and Reports of Unaccommodated Passengers, 38 Fed. Reg. 15083, 15084 (1973) (CAB Order EDR-248) (amending existing regulations to include foreign air carriers). See also testimony of Jerome F. Huisentruit, assistant general counsel for the Air Transport Association of America and respondent’s witness on Board jurisdiction, App. 72-73.
      The contemplation that common-law remedies will continue to exist is in conformance with longstanding Board policy dating back at least to the Board’s approval in 1962 of an industry agreement covering trunk carriers and calling for ticketing time limits and reservation charges in combination with a provision for denied boarding compensation. See Domestic Trunklines, Tariff Agreement, 35 C. A. B. 881 (1962) (CAB Order E-18064). The Board specifically rejected the carriers’ proposal that the denied boarding compensation be made an exclusive remedy:
      “[T]o the extent that the proposed tariff provision is designed to restrict a passenger from seeking damages to which he would otherwise be entitled under the common law, we find it to be adverse to the public interest. Accordingly, we shall condition our approval of the agreement to make clear that the prescribed penalty is a minimum obligation of the carrier which, only if accepted by the passenger, would terminate the carrier’s obligation.” Id., at 882-883.

       The Court of Appeals specifically remanded for reconsideration of the award of punitive damages on petitioner’s claim of fraudulent misrepresentation. The propriety of that ruling was not challenged in this Court.
      As the issues of ultimate liability and damages are not before us, we express no opinion as to their merits. We conclude above that mere compliance with agency regulations is not sufficient in itself under the Act to exempt a carrier from common-law liability. We make clear, however, that this conclusion is not intended to foreclose the courts on remand from considering, in relation to other issues in the case, evidence that the Board was fully advised of the practice complained of, and that the carrier had cooperated with the Board.


author: Per Curiam.

text:
    OMAHA NATIONAL BANK v. NEBRASKANS FOR INDEPENDENT BANKING, INC., et al.
    No. 75-1382.
    Decided June 7, 1976
   Per Curiam.

From the time petitioner Omaha National Bank sought approval from the Regional Administrator of National Banks of its drive-in/walk-in facility until after the en banc decision of the Court of Appeals, Nebraska law permitted a state-chartered bank to operate one “attached auxiliary teller office” and not more than two “detached auxiliary teller offices.” Neb. Rev. Stat. § 8-157 (2) (1974). The two types of “auxiliary teller offices” were defined in Nebraska Department of Banking Reg. § 8-157-01 (1970). The Court of Appeals found it “abundantly clear” that a state bank situated like Omaha National would not be permitted to operate the added facility, and ruled that under 12 U. S. C. § 36, see First Nat. Bank v. Dickinson, 396 U. S. 122, 135 (1969), the facility was a branch which the bank was not permitted to operate. 530 F. 2d 755, 762 (CA8 1976).

Since the en banc decision, § 8-157 (2) has been amended by Legislative Bill 763, approved by the Governor on March 11, 1976, to redefine “auxiliary teller” facilities which state banks may operate. It appearing that this amendment, which will become effective in July 1976, may have a substantial bearing on the outcome of this case, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for reconsideration in light of Legislative Bill 763.

So ordered.


text:
    TENNESSEE et al. v. DUNLAP
    No. 75-95.
    Argued March 22, 1976
    Decided June 10, 1976
    Marshall, J., delivered the opinion for a unanimous Court.

      Alex B. Shipley, Jr., Assistant Attorney General of Tennessee, argued the cause for petitioners. With him on the brief was R. A. Ashley, Jr., Attorney General.

      William Terry Denton argued the cause and filed a brief for respondent.

        Solicitor General Bork, Deputy Solicitor General Jones, and John F. Cooney filed a brief for the United States as amicus curiae urging reversal.

   Mr. Justice Marshall

delivered the opinion of the Court.

Respondent brought this action in the United States District Court for the Eastern District of Tennessee, challenging the termination of his employment as a technician with the Tennessee Air National Guard as violative of the Due Process Clause of the Fourteenth Amendment. Petitioners are the defendants below — the State of Tennessee and its Governor, the Tennessee Air National Guard, and various officials of the Tennessee Air National Guard.

The National Guard Technicians Act of 1968 provides generally that a National Guard technician, who is a full-time civilian employee of the National Guard, must be a member of the National Guard, and that a technician who is separated from the Guard “shall be promptly separated from his technician employment.” 32 U. S. C. §§ 709 (b), (e)(1). The same section of the Act provides that “a technician may, at any time, be separated from his technician employment for cause.” § 709 (e) (3). On December 8, 1972, respondent was discharged from the Tennessee Air National Guard for the stated reason that his term of enlistment had expired. Five days later respondent was notified by his commander that his employment as a technician would be terminated in 30 days because he was no longer a member of the Guard.

Respondent concedes the validity of the statutory requirement that a technician maintain his status as a member of the National Guard. Accordingly, the focus of his claims is petitioners’ refusal to permit his re-enlistment. In his complaint respondent alleged that prior to December 8 he had attempted, without success, to re-enlist in the Guard. He further alleged that his request for a hearing before the board charged with making a recommendation on his re-enlistment was denied, that he was never supplied a copy of any charges against him, and that the only reason he ever received for the refusal of his requested re-enlistment was a general one that it was not in the best interest of the Guard to allow him to re-enlist. In fact, respondent alleged, the reason he was denied re-enlistment was to effect his discharge as a technician without the necessity of affording him the administrative recourse he would have had if he had been terminated as a technician directly and “for cause” under § 709 (e)(3). Liberally construed, the complaint then asserted three constitutional claims: (1) that the mechanism by which respondent was refused re-enlistment denied him procedural due process; (2) that the “alleged discretion” vested in his commander to decide whéther his re-enlistment was in the best interest of the Guard does not comport with due process because of the lack of “any objective or ascertainable standards or criteria” to guide the exercise of that discretion; and (3) that the denial of re-enlistment was arbitrary and capricious, and therefore violative of due process.

The District Court dismissed the complaint on the ground that the denial of re-enlistment was a military action not subject to review by a civilian court. The Court of Appeals for the Sixth Circuit reversed. It apparently agreed with the District Court that a decision to refuse re-enlistment in the Guard would ordinarily be nonreviewable in a civil court. But the Court of Appeals held that respondent should be given the opportunity to prove that his denial of, re-enlistment was based not on any military considerations, but on a desire to terminate his technician employment in such a way as to circumvent § 709 (e) (3)'s requirement of “cause,” which would have been applicable if his technician employment had been terminated directly. “In order for [§709 (e)(3)] to have meaning,” the court concluded, “the unreviewable discretion of Guard officials to permit or refuse re-enlistments must not extend to decisions which are made for the purpose of affecting a guardsman's technician employment.” 514 F. 2d 130, 133 (1975). In other words, the court held that if a denial of re-enlistment reflects no more than a desire to terminate employment as a technician, cause must be shown under §709 (e)(3). And from this the court concluded that there was a genuine issue as to whether respondent had a property interest in continued employment sufficient to support his due process contentions. We granted certiorari. 423 U. S. 821 (1975).

We do not agree with the Court of Appeals that § 709 (e) (3) has any application to this case. Subsection (3) of § 709 (e) provides only one of several bases for the termination of a technician’s employment. As already indicated, subsection (1) requires that a technician “who is separated from the National Guard or ceases to hold the military grade specified for his position . . . shall be promptly separated from his technician employment.” Subsection (2) provides that a technician “who fails to meet . . . military security standards . . . may be separated from his employment as a technician and concurrently discharged from the National Guard.” And subsection (3), to repeat, provides additionally that “a technician may, at any time, be separated from his technician employment for cause.” There is nothing in the language or structure of §709 (e), or in its legislative history, to suggest that subsection (3)’s requirement of cause was intended to qualify subsection (l)’s mandate that termination of employment accompany separation from the Guard. Nor is there anything to- suggest that subsection (3) was intended to have any bearing on whether one is separated from the Guard. Indeed, the relevant House and Senate committee reports summarize the three subsections as providing “for termination of civilian employment upon loss of Guard membership, failure to meet military security standards, or separation for cause.” H. R. Rep. No. 1823, 90th Cong., 2d Sess., 3 (1968); S. Rep. No. 1446, 90th Cong., 2d Sess., 3 (1968) (emphasis added). See also H. R. Rep. No. 1823, p. 8; S. Rep. No. 1446, p. 7. The clear and sole import of subsection (3), then, is that if a technician remains a member of the National Guard and is otherwise eligible for continued employment under subsections (1) and (2), he may nevertheless be discharged for cause. There can be no significance, therefore, to the claim that the denial of re-enlistment to respondent was designed to circumvent the requirements of § 709 (e)(3). Nor can §709 (e)(3) provide the foundation for any due process claim in this case, since the property interest it creates in continued employment is confined, in all events, to the guardsman’s term of enlistment.

The judgment of the Court of Appeals is

Reversed.

       The Secretary of the Army or the Air Force, in this case the Air Force, may by regulation exempt technicians from the requirement of membership in the Guard. 32 U. S. C. § 709 (b). The Senate and House committee reports contemplated the exemption of about 5% of the technicians — principally secretaries, clerk-typists, and security guards. H. R. Rep. No. 1823, 90th Cong., 2d Sess., 6 (1968); S. Rep. No. 1446, 90th Cong., 2d Sess., 5 (1968). Respondent has not been exempted from the requirement of Guard membership.

       The complaint also included a general assertion of discrimination in violation of the Equal Protection Clause. Never adequately alleged, and not considered by the District Court or the Court of Appeals, this assertion is not before us.

       Respondent asserts in his brief that he had a property interest in the form of a legitimate expectation of re-enlistment and continued employment. See Perry v. Sindermann. 408 U. S. 593, 599-603 (1972). This assertion was not pleaded in respondent’s complaint, was not considered by the District Court or the Court of Appeals, and accordingly is not before us.


author: Mr. Justice Rehnquist Mr. Justice Blackmun, Mr. Justice Brennan, Mr. Justice Stevens,

text:
    UNITED STATES v. MacCOLLOM
    No. 74-1487.
    Argued March 29, 1976
    Decided June 10, 1976

      Rehnquist, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Stewart and Powell, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 329. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 330. Stevens, J., filed a dissenting opinion, in which Brennan, White, and Marshall, JJ., joined, post, p. 334.

      Frank H. Easterbrook argued the cause for the United States pro hac vice. With him on the briefs were Solicitor General Bork, Assistant Attorney General Thorn-burgh, and Jerome M. Feit.

      John A. Strait, by appointment of the Court, 423 U. S. 1045, argued the cause and filed a brief for respondent.
   Mr. Justice Rehnquist

announced the judgment of the Court in an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Powell join.

This case presents the question of whether the restrictions imposed by 28 U. S. C. § 753 on the availability to an indigent prisoner of a free trial transcript to aid him in preparing a petition for collateral relief are consistent with the Fifth Amendment to the Constitution. The Court of Appeals for the Ninth Circuit, in contrast to every other Court of Appeals which has ruled on the issue, held that such prisoners have an absolute right to a transcript. We reverse.

I

Respondent was convicted of uttering forged currency in violation of 18 U. S. C. § 472 after a jury trial in the United States District Court for the Western District of Washington. On June 3, 1970, he was sentenced to 10 years’ imprisonment. He did not appeal. Nearly two years later respondent, acting pro se, filed in the District Court a paper designated “Motion for Transcript in Forma Pauperis.” This was returned to respondent with the advice that he first had to file a motion pursuant to 28 U. S. C. § 2255 before the court could act on his request for a transcript.

Respondent then filed a “complaint for Declaratory Judgment and Injunctive Relief” in which he alleged that he “intends to move this Court for vacation of his sentence pursuant to 28 U. S. C. § 2255.” He asserted that he was unable to afford a transcript, that a transcript would show that he had not been afforded effective assistance of counsel, and that there was insufficient evidence to support the verdict of guilty. The complaint further alleged that without a transcript respondent would be “unable to frame his arguments for fair and effective review.” The complaint did not elaborate upon respondent’s two asserted grounds for relief.

The District Court treated this pleading as a motion under 28 U. S. C. § 2255, granted respondent leave to proceed in forma pauperis, appointed counsel, and held a hearing. After the hearing the court dismissed the complaint for failure to state a claim upon which relief could be granted. Respondent appealed, and a divided panel of the Court of Appeals reversed, 511 F. 2d 1116 (1974), holding that respondent was entitled to a transcript “in order to assist him in the preparation of a post-conviction motion under 28 U. S. C. [§] 2255.” Id., at 1124.

II

Congress has expressly addressed the question of furnishing transcripts at public expense in 28 U. S. C. § 753 (f), which provides in pertinent part:

“Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U. S. C. [§] 3006A)) or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pau-peris shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. . . .”

The statute thus provides for a free transcript for indigent prisoners asserting a claim under § 2255 if a judge certifies that the asserted claim is “not frivolous” and that the transcript is “needed to decide the issue.” The District Court, by its conclusion that respondent failed to state a claim upon which relief could be granted, implicitly decided one of these two issues against respondent.

The Court of Appeals held that it was not necessary to declare § 753 (f) unconstitutional in order to grant respondent relief. Rather, the court held that the section “does not prohibit courts from . . . requiring the government to supply an imprisoned indigent with a free transcript before he files a § 2255 motion. Such a court order would simply fill a constitutional deficit not addressed by the statute.” (Emphasis added.) 511 F. 2d, at 1119-1120.

This is a novel approach to statutory construction. The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress. Reeside v. Walker, 11 How. 272, 291 (1851). This particular statute contains a limited grant of authority to the courts to authorize the expenditure of public funds for furnishing transcripts to plaintiffs in § 2255 actions. The fact that the statute does not “prohibit” the furnishing of free transcripts in other circumstances is of little significance, since most such statutes speak only in terms of granting authority for the expenditure of federal funds. Where Congress has addressed the subject as it has here, and authorized expenditures where a condition is met, the clear implication is that where the condition is not met, the expenditure is not authorized. Botany Mills v. United States, 278 U. S. 282, 289 (1929); Passenger Corp. v. Passengers Assn., 414 U. S. 453, 458 (1974).

It is true, as respondent observes, that the statute, as currently written, distinguishes between habeas corpus petitioners and parties proceeding under § 2255 in that only the latter must make a showing of need and nonfrivolousness in order to obtain a free transcript. Thus while it is still true that the “remedy” afforded by § 2255 is “exactly commensurate with that which had previously been available by habeas corpus . . . ,” Hill v. United States, 368 U. S. 424, 427 (1962), the right to pursue that remedy with a free transcript has now been somewhat limited by Congress. Respondent argues that this constitutes a suspension of the writ of habeas corpus in violation of Art. I, § 9, cl. 2, of the Constitution.

This argument presupposes, inter alia, that a right to a free transcript is a necessary concomitant of the writ which the Founders declared could not be suspended. This is obviously not the case. The writ of habeas corpus operated until 1944 with no provision for free transcripts for indigents. See 58 Stat. 6, 28 U. S. C. § 9a (1940 ed., Supp. IV). Congress, when in that year it authorized free transcripts for the first time, could certainly have limited the authorization to nonfrivolous cases where a need had been shown. If Congress could have thus limited the writ directly without “suspending” it, it follows that it may do so indirectly. The only possible objection is a Fifth Amendment due process-equal protection claim, to which we now turn.

Ill

The Court of Appeals did not technically decide this constitutional issue, since it thought it had discovered a lacuna in the statute, but its reference to a “constitutional deficit” suggests its view on this question. Respondent urges that if the statute is read as we now read it, it violates both the Due Process Clause of the Fifth Amendment and his right to “equal protection.”

The Due Process Clause of the Fifth Amendment does not establish any right to an appeal, see Griffin v. Illinois, 351 U. S. 12, 18 (1956) (plurality opinion), and certainly does not establish any right to collaterally attack a final judgment of conviction. In this case respondent was granted a statutory right of appeal without payment of costs if he were an indigent, and had he pursued that right § 753 (f) would have authorized the use of public funds to furnish him a transcript of the trial proceedings without any further showing on his part. Having forgone this right, which existed by force of statute only, he may not several years later successfully assert a due process right to review of his conviction and thereby obtain a free transcript on his own terms as an ancillary constitutional benefit. The conditions which Congress had imposed on obtaining such a transcript in § 753 (f) are not “so arbitrary and unreasonable ... as to require their invalidation,” Douglas v. California, 372 U. S. 353, 365 (1963) (Harlan, J., dissenting); rather they “comport with fair procedure,” id., at 357 (Court’s opinion).

Although the statutory conditions established in § 753 (f) with respect to furnishing a free transcript to mov-ants in § 2255 proceedings are therefore consistent with the due process requirements of the Fifth Amendment, it is undoubtedly true that they place an indigent in a somewhat less advantageous position than a person of means. But neither the Equal Protection Clause of the Fourteenth Amendment, nor the counterpart equal protection requirement embodied in the Fifth Amendment, guarantees “absolute equality or precisely equal advantages,” San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 24 (1973). In the context of a criminal proceeding they require only “an adequate opportunity to present [one’s] claims fairly . . . .” Ross v. Moffitt, 417 U. S. 600, 616 (1974).

In Douglas v. California, supra, the Court held that the State must provide counsel for an indigent on his first appeal as of right. But in Ross v. Moffitt, supra, we declined to extend that holding to a discretionary second appeal from an intermediate appellate court to the Supreme Court of North Carolina. We think the distinction between these two holdings of the Court is of considerable assistance in resolving respondent’s equal protection claim. Respondent in this case had an opportunity for direct appeal, and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings. But having forgone that right, and instead some years later having sought to obtain a free transcript in order to make the best case he could in a proceeding under § 2255, respondent stands in a different position.

The Court has held that when a State grants a right to collateral review, it may not deny the right to an indigent simply because of inability to pay the required filing fee, Smith v. Bennett, 365 U. S. 708 (1961). There is no such impediment here; respondent was permitted to proceed in forma pauperis in his § 2255 action. The Court has also held that a State may not confide to the public defender the final decision as to whether a transcript shall be available to the criminal defendant who collaterally attacks his conviction, Lane v. Brown, 372 U. S. 477 (1963). There the Court observed that the state provision “confers upon a state officer outside the judicial system power to take from an indigent all hope of any appeal at all.” Id., at 485.

The congressional statute governing the furnishing of free transcripts to plaintiffs in § 2255 actions has no such infirmity. The decision as to the provisions of the transcript at public expense is made initially by an official at the very heart of the judicial system — a district judge in the judicial district in which the § 2255 plaintiff was tried. The district court has the power to order a free transcript furnished if it finds that the “suit ... is not frivolous and that the transcript is needed to decide the issue presented . . . .” 28 U. S. C. § 753 (f).

We think that the formula devised by Congress satisfies the equal protection component of the Fifth Amendment. Respondent chose to forgo his opportunity for direct appeal with its attendant unconditional free transcript. This choice affects his later equal protection claim as well as his due process claim. Equal protection does not require the Government to furnish to the indigent a delayed duplicate of a right of appeal with attendant free transcript which it offered in the first instance, even though a criminal defendant of means might well decide to purchase such a transcript in pursuit of relief under § 2255. The basic question is one of adequacy of respondent’s access to procedures for review of his conviction, Ross v. Moffitt, supra, and it must be decided in the light of avenues which respondent chose not to follow as well as those he now seeks to widen. We think it enough at the collateral-relief stage that Congress has provided that the transcript be paid for by public funds if one demonstrates to a district judge that his § 2255 claim is not frivolous, and that the transcript is needed to decide the issue presented.

Respondent urged in oral argument that if trial counsel had done a poor job of representing a criminal defendant, such counsel might well urge the defendant to forgo his right of appeal in order to prevent a claim of ineffective assistance of counsel from being raised on the appeal. It is certainly conceivable that such a state of facts might exist, notwithstanding the fidelity to the interest of their clients demonstrated repeatedly by the overwhelming majority of the members of the legal profession. But § 753 (f) does not require that a § 2255 plaintiff must prove his claim in order to obtain a transcript, but only that he convince the district court that such claim is not frivolous. Had the District Court here been confronted not with merely a conclusory allegation, but with some factual allegations indicating a denial of respondent’s Sixth Amendment right to counsel, together with an additional explicit assertion that trial counsel had urged respondent to forgo his appeal, that court might have concluded that such a claim was not frivolous, and further decided that a free transcript should be furnished pursuant to § 753 (f) .

But that is not our case. Respondent made only a naked allegation of ineffective assistance of counsel. Since any discussion he may have had with his trial counsel as to the desirability of appeal would not normally appear in the transcript of proceedings at trial, the furnishing of such transcript would not have aided him in refreshing his recollection of such discussions. The failure to flesh out this aspect of respondent’s claim of ineffective assistance of counsel, then, is not likely to have been cured by a transcript.

We think this is an area of the law where the opinions of the courts of appeals are entitled to particular weight, since they represent not only expositions of federal and constitutional law, but also expressions of essentially practical judgment on questions which those courts must confront far more than we do. The fact that with the exception of the decision presently under review they have unanimously concluded that the conditions establishéd by § 753 (f) for the furnishing of a free transcript do not violate the Fifth Amendment is significant. A practical reason for their conclusion is well expressed by Judge Haynsworth in United States v. Shoaf, 341 F. 2d 832 (CA4 1964), in which he said for that court:

“The usual grounds for successful collateral attacks upon convictions arise out of occurrences outside of the courtroom or of events in the courtroom of which the defendant was aware and can recall without the need of having his memory refreshed by reading a transcript. He may well have a need of a transcript [to support his claim] but rarely, if ever, ... to become aware of the events or occurrences which constitute a ground for collateral attack,” Id., at 835.

We conclude that the fact that a transcript was available had respondent chosen to appeal from his conviction, and remained available on the conditions set forth in § 753 to an indigent proceeding under § 2255, afforded respondent an adequate opportunity to attack his conviction. To hold otherwise would be to place the indigent defendant in a more favorable position than a similarly situated prisoner of some, but not unlimited, means, who presumably would make an evaluation much like that prescribed in § 753 (f) before he spent his own funds for a transcript.

“[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Ross v. Moffitt, 417 U. S., at 616.

The judgment of the Court of Appeals for the Ninth Circuit is

Reversed.

Mr. Justice Blackmun,

concurring in the judgment.

I am in complete accord with what is said in n. 1 of the plurality opinion, ante, at 321-322, regarding Mr. Justice Stevens’ dissent. It is not this Court’s function to rewrite 28 U. S. C. § 753 (f) in order to reflect — as that dissent appears to me to urge — what may be regarded as sound policy for the administration of our criminal justice system.

I write separately, however, to emphasize the narrowness of the constitutional issue that is before us and the ease of its resolution. The answer to this case lies, I think, in the fact that respondent MacCollom has a current opportunity to present his claims fairly, and we need not consider the constitutional significance of what he might have done at the time a direct appeal from his conviction could have been taken.

For me, the issue in this case is whether the Constitution requires that a transcript be provided when an indigent makes no showing, with any degree of particularity, that he requires the transcript in order to make an effective collateral attack on his conviction. The crucial inquiry, as the Court said in the analogous Fourteenth Amendment context, is whether § 753 (f) affords indigents “an adequate opportunity to present their claims fairly within the adversary system.” Ross v. Moffitt, 417 U. S. 600, 612 (1974).

Here, respondent was permitted to proceed in forma pauperis, and counsel was appointed for him. In order for him to obtain a transcript of his trial, he was required to show only that his claim was not frivolous and that there was a basis, grounded on some articulable facts, for believing that a transcript would assist him in his § 2255 proceeding. Clearly, there is no constitutional requirement that the United States provide an indigent with a transcript when that transcript is not necessary in order for him to prove his claim, or when his claim is frivolous on its face. Nor does the Constitution require that an indigent be furnished every possible legal tool, no matter how speculative its value, and no matter how devoid of assistance it may be, merely because a person of unlimited means might choose to waste his resources in a quest of that kind.

The way was thus open for respondent to present his claim fairly within the very bounds of § 753 (f). One need go no further. I therefore join the judgment reversing the Court of Appeals.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

I join my Brother Stevens’ dissent but add this separate dissent to record my disagreement with the plurality’s view that the Government’s refusal to furnish an indigent defendant a free trial transcript in a proceeding under 28 U. S. C. § 2255, upon merely a showing of in-digency, does not deny respondent equal protection of the laws secured against the Federal Government, as the plurality concedes, through the Due Process Clause of the Fifth Amendment. See Buckley v. Valeo, 424 U. S. 1, 87 (1976); Weinberger v. Wiesenfeld, 420 U. S. 636, 638 n. 2 (1975).

“[T]he central aim of our entire judicial system [is that] all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court,’ ” Griffin v. Illinois, 351 U. S. 12, 17 (1956) (plurality opinion), for this is a "country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law.” Id., at 19. “Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.” Roberts v. LaVallee, 389 U. S. 40, 42 (1967). Thus, in Griffin, the Court held that “[djestitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts,” 351 U. S., at 19, and that therefore the State must furnish the indigent defendant with a free trial transcript for purposes of direct appeal.

The Griffin principle of equality was not limited to transcripts for purposes of direct appellate review. In Smith v. Bennett, 365 U. S. 708 (1961), the Court invalidated a filing fee for state habeas corpus as applied to indigents. The invalidation was held to be required by an earlier decision holding that a State could not require an indigent to pay a filing fee before being allowed to appeal in one of its courts. Burns v. Ohio, 360 U. S. 252 (1959). Later, Lane v. Brown, 372 U. S. 477, 484 (1963), held that “Smith makes clear that the Griffin principle also applies to state collateral proceedings . ...”

The Griffin equality principle was next applied to appeals from state habeas proceedings. In Long v. District Court of Iowa, 385 U. S. 192 (1966), the Court, stating that “having established a post-conviction procedure, a State cannot condition its availability to an indigent upon any financial consideration,” held that an indigent defendant must be furnished a free transcript of his state habeas proceedings for purposes of appeal from a denial of that relief. Id., at 194. And in Gardner v. California, 393 U. S. 367 (1969), the Court went still further and required the furnishing of a transcript of a habeas proceeding for the purposes of a second such proceeding. Thus, the plurality’s opinion today that respondent may be required to show more than indigency before being entitled to his trial transcript for purposes of collateral review is a plain departure from Griffin and its progeny.

The denial in this case is particularly egregious, for one of respondent’s claims on the merits is that he was denied effective assistance of counsel. Substantiation of such a claim is virtually impossible without the aid of a trial transcript. Yet the plurality denigrates respondent’s claim as a “naked allegation.” Ante, at 327. Essentially, therefore, he is denied a transcript for making an unsubstantiated allegation, an allegation that obviously he cannot establish without a transcript.

It bears emphasis that where, as here, denial of equal protection is the issue, it matters not, under our cases, that the indigent had a fair opportunity to present a defense and have his conviction reviewed on direct appeal. The unfairness born of discrimination denying equal protection is as offensive to the Constitution as any unfairness resulting from procedural deficiencies in the criminal system. Thus, I cannot accept the plurality’s argument that respondent could constitutionally be denied a free transcript because “[Respondent in this case had an opportunity for direct appeal, and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings.” Ante, at 324. The Constitution demands that respondent, despite his indigency, be afforded the same opportunity for collateral review of his conviction as the nonindigent. “If [the Government] has a general policy of allowing [collateral relief], it cannot make lack of means an effective bar to the exercise of this opportunity. The [Government] cannot keep the word of promise to the ear of those illegally convicted and break it to their hope.” Griffin v. Illinois, 351 U. S., at 24 (Frankfurter, J., concurring in judgment).

The plurality’s reliance, ante, at 324, upon Ross v. Moffitt, 417 U. S. 600, 616 (1974), for the proposition that “[i]n the context of a criminal proceeding [equal protection] require[s] only 'an adequate opportunity to present [one’s] claims fairly’ ” is patently misplaced. This quotation from Boss, read in context, speaks not merely to equality of opportunity in the overall criminal process, but also to equality of opportunity at any stage of the process where the validity of the defendant’s restraint or conviction is the primary consideration.

I reject as wholly fallacious the argument that adequacy of opportunity to present claims at trial and on direct appeal so far diminishes the importance of collateral review, that discrimination between indigent and nonindigent in post-conviction proceedings is constitutionally tolerable. That argument is implicitly if not explicitly rejected in the unbroken line of our decisions that make no distinction, for purposes of equal protection analysis, between collateral proceedings and trials and direct appeals. Any distinction must necessarily be constitutionally intolerable where the stakes are no less than the constitutionality of a criminal conviction. Any distinction would also be plainly inconsistent with the explicit recognition given habeas corpus in Art. I, § 9, cl. 2, of the Constitution. See Fay v. Noia, 372 U. S. 391, 399-403 (1963). And for federal prisoners, “history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis v. United States, 417 U. S. 333, 343 (1974).

Today’s decision empties of all promise the Court’s assurance only six years ago that decisions applying Griffin “have pointedly demonstrated that the passage of time has heightened rather than weakened the attempts [by this Court] to mitigate the disparate treatment of indigents in the criminal process.” Williams v. Illinois, 399 U. S. 235, 241 (1970). 1 dissent.

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall join, dissenting.

The decisive question in this case is whether, in judging the sufficiency of respondent’s motion, we should assume that his allegations are true.

He has alleged that there was insufficient evidence to support his conviction, but that he did not appeal. If he had appealed, respondent would have obtained the transcript of the trial at Government expense. He has also alleged that his lawyer did not provide him with the effective representation at trial that the Sixth Amendment requires, and that this conclusion would be supported by an examination of the trial transcript. Respondent has neither the training nor the memory to allege the factual basis for that conclusion. If, however, that conclusion is accurate, he is entitled not only to a transcript but to a new trial.

As the plurality points out, there are legitimate reasons for holding that respondent’s allegations are not specific enough. In most cases the pleader should be able to set forth more factual details to support his ultimate conclusion. If respondent’s pleading is adequate, almost any general statement claiming ineffective assistance of counsel would entitle a prisoner to a transcript in a proceeding under § 2255. In short, the right to a transcript at that stage would be almost as automatic as when a direct appeal is taken. Thus, in a sense, this case presents the question whether the defendant’s right to a transcript at Government expense should survive if he fails to take a direct appeal.

There are two reasons why I would answer that question in the affirmative and accept respondent’s allegations at face value for purposes of determining whether his motion is frivolous and whether a transcript is necessary to decide the claims he asserts.

First, § 753 (f) should be interpreted to establish a standard of nonfrivolousness and need that may be fairly administered. The statute itself does not address the standard that judges are to use in determining “that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal,” and the legislative history is also silent on the question. The plurality reads the statute to impose upon the § 2255 movant the burden of putting forward “some factual allegations” indicating a denial of constitutional rights, ante, at S26, but this reading creates the risk that district judges will exercise the discretion conferred by the statute on a haphazard rather than a principled basis. In many cases, the judge can have no rational basis for determining whether or not the movant could ultimately succeed on the merits without first ordering a transcript. Unquestionably some judges routinely order a transcript in a case like this while others do not. Given the uncertainty of the standard adopted by the plurality, the indigent’s right to protection against the risk that his appointed counsel was in fact ineffective depends on the happenstance of what district judge has been assigned to his case. Such an important protection should not depend on such a fortuitous circumstance. In short, the administration of justice in the federal courts would be more evenhanded if the indigent’s right to a transcript were not dependent either upon the advice he receives from counsel at the time when he may still file a direct appeal, or upon his later ability to persuade a trial judge that if the transcript were available, it would show that counsel’s advice was actually unsound. The indigent is at least entitled to a transcript of sufficient completeness to permit a determination of frivolousness. Cf. Coppedge v. United States, 369 U. S. 438, 445-446.

Second, in my judgment a ruling in respondent’s favor would tend to improve the administration of justice in the federal system. If, as seems probable, such a ruling would make transcripts available almost automatically in § 2255 proceedings, it would make good sense for federal prosecutors to adopt the practice of routinely ordering the transcript at the conclusion of every criminal trial resulting in conviction. Such a practice would eliminate a serious cause of delay in the processing of criminal appeals. Even assuming an increase in monetary costs, we should take into account the costs associated with unnecessary delay in the appellate process and the saving in judges' time that would result from the elimination of the need to decide questions such as this. One of our Nation’s scarcest resources is the time of our judges; if spending a few dollars for automatic disposition of preliminary issues will enable them to devote extra time to adjudicating disputes on the merits, the money will be well spent. See Coppedge, supra, at 450-452; id., at 458 (Stewart, J., concurring); J. Frank, American Law: The Case for Radical Reform 85-110 (1969). More importantly, routine availability of transcripts would minimize the danger — which is not so insignificant that it can be safely ignored — that the rights of an indigent defendant may be lost because of the ineptitude of his appointed counsel.

I recognize that my view does not reflect a necessary reading of the statute as applied to respondent's § 2255 motion, but it certainly is permissible to rule as a matter of law that his allegations are sufficient to plead a non-frivolous claim that cannot be resolved without a transcript. Such a ruling would have the added virtue of avoiding the constitutional issue discussed in Part III of the plurality’s opinion. Cf. United States v. Jin Fuey Moy, 241 17. S. 394, 401. On balance, I would therefore affirm the judgment of the Court of Appeals for the Ninth Circuit.

       Our Brother SteveNs would construe the pertinent part of § 753 (f) to “make transcripts available almost automatically in § 2255 proceedings . . . post, at 338. We think such a construction would do violence to the intent of Congress which clearly appears from the language of that section, supra, at 320. Congress did in that section make transcripts available automatically on direct appeal, but in the same section limited their availability in § 2255 motions to cases where the trial judge certifies that the § 2255 suit is not frivolous and that the transcript is needed to decide the issue presented by the suit. Our Brother Stevens advances what may well be very sound policy reasons for furnishing free transcripts as a matter of course to § 2255 plaintiffs, as well as to convicted defendants pursuing direct appeals. But it is plain from a reading of § 753 (f) that these considerations have not yet commended themselves to Congress.

       The difference is not as great as it might appear to be, however, because habeas corpus petitioners who wish to proceed in forma pauperis must still overcome a “nonfrivolous” barrier under 28 U. S. C. § 1915. E. g., Kitchens v. Alderman, 376 F. 2d 262 (CA5 1967); Blair v. California, 340 F. 2d 741 (CA9 1965).

       The constitutional treatment of habeas corpus, of course, is not contained in the Due Process Clause, but in Art. I, § 9, cl. 2, of the Constitution.

       Since a § 2255 claim is usually presented to the trial judge he will likely have an independent recollection of counsel’s performance which may well lead him to conclude that a movant’s claim is nonfrivolous.

        E. g., Ellis v. Maine, 448 F. 2d 1325 (CA1 1971); United States ex rel. Buford v. Henderson, 524 F. 2d 147 (CA2 1975); United States v. Shoaf, 341 F. 2d 832 (CA4 1964); United States v. Herrera, 474 F. 2d 1049 (CA5 1973); Hoover v. United States, 416 F. 2d 431 (CA6 1969); United States ex rel. Nunes v. Nelson, 467 F. 2d 1380 (CA9 1972) (habeas corpus); Taylor v. United States, 238 F. 2d 409 (CA9 1956) (§ 2255 motion); Hines v. Baker, 422 F. 2d 1002 (CA10 1970).

       This opinion and other aspects of this question were thoroughly discussed shortly after the 1965 amendment to § 753 (f) in Black-mun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F. R. D. 343 (1967).

       Respondent’s other allegation is insufficiency of the evidence. Two of our decisions plainly indicate that this allegation suffices to require provision of a verbatim transcript. See Mayer v. City of Chicago, 404 U. S. 189 (1971); Draper v. Washington, 372 U. S. 487 (1963). Mayer also indicated that an allegation of prejudicial prose-cutorial misconduct, 404 U. S., at 198, also requires provision of a transcript. That claim, for purposes of substantiation on appeal or collateral review, is like respondent’s first claim of ineffective assistance of counsel. Mayer, 404 U. S., at 195, held that where the grounds of appeal are insufficiency of the evidence and prosecutorial misconduct, the defendant need only “make out a colorable need for a complete transcript” in order to be entitled to it.

       Indeed, in Burns v. Ohio, 360 U. S. 252 (1959), a filing fee for direct appeals was held invalid as applied to indigents, even though the indigent petitioner there had already received one appellate review of his conviction. As the Court stated:
      “[T]he State argues that petitioner received one appellate review of his conviction in Ohio, while in Griffin, Illinois had left the defendant without any judicial review of his conviction. This is a distinction without a difference for, as Griffin holds, once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.” Id., at 257.

       28 U. S. C. §753 (f); 18 U. S. C. §§3006A (a), .(c), (d)(6).

       The provision for free transcripts in § 2255 cases was added in 1965 by Pub. L. 89-167, 79 Stat. 647, which followed verbatim a proposal of the Judicial Conference in 1961. Report of the Judicial Conference of the United States, Proceedings 100-101 (1961). The primary purpose of the amendment was to make transcripts as available to indigent federal prisoners on § 2255 motions as on habeas corpus. See H. R. Rep. No. 133, 89th Cong., 1st Sess. (1965); S. Rep. No. 617, 89th Cong., 1st Sess. (1965); 111 Cong. Rec. 5000 (1965) (remarks of Rep. Celler); id., at 20828-20829. The legislative sources do not discuss what standards should be applied in determining nonfrivolousness and need.
      Specifically, the legislative history does not address the question whether federal prisoners are required to make a stronger showing of nonfrivolousness and need on § 2255 motions than on habeas corpus. Although § 753 (f) expressly requires certification of nonfrivo-lousness and need only in § 2255 cases, it requires prior leave to proceed in forma pauperis in both habeas corpus and § 2255 proceedings. This requirement, in turn, imports the requirement of nonfrivolousness contained in 28 U. S. C. §1915 (d). The legislative history contains no indication that the standard of nonfrivo-lousness for § 2255 cases was to be any stronger than that imposed by § 1915 (d). See Blackmun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F. R. D. 343, 356-357 (1967). Indeed, §1915 is nowhere mentioned. Nor does the requirement of need impose any additional burden upon § 2255 movants, since §§ 753 (f) and 1915 (d) could not reasonably be interpreted to grant a right to a transcript to habeas corpus petitioners who assert nonfrivolous claims that can be resolved without a transcript.

       Since our most gifted trial lawyers usually need daily copy to be sure of exactly what happened in the courtroom the preceding day, and since the passage of time is bound to cause any trial to be blended with many others in the judge’s memory, it is almost inconceivable that the judge can determine whether a motion has arguable merit without the benefit of a transcript.

       Would the plurality regard respondent’s pleadings as sufficient if he had alleged that his lawyer failed to object to inadmissible evidence, failed to argue effectively to the jury, failed to advise him properly about his appeal rights, or failed to conduct an adequate cross-examination of key prosecution witnesses? Such allegations are just as easily made as the general claim of ineffectiveness of counsel and just as difficult to support by factual details without the assistance of a transcript. Rather than' requiring the district judge to take the time to evaluate all the permutations of such allegations as these, is it not more sensible to make the record available promptly and automatically?

       Indeed, the failure of respondent’s attorney to file a notice of appeal itself supports his claim of denial of effective assistance of counsel. Because notice of appeal from a criminal conviction must be filed within the 10-day period specified in Fed. Rule App. Proc. 4 (b), most defense counsel routinely file such notice in order to protect their clients’ right to appeal and to obtain a transcript. Furthermore, in the present case, respondent represented in this Court, although not in the District Court, that he did not appeal from his conviction because he was advised by his lawyer that “‘it would interfere with a motion to modify sentence.’” Brief for Respondent 3.

       Although I have described that right as “almost” the equivalent of the absolute right to a full transcript on direct appeal, the difference between the two is significant. Before Congress amended § 753 (f) to provide for automatic availability of transcripts, Pub. L. 91-545, 84 Stat. 1412, the statute already authorized transcripts for appellants proceeding in forma pauperis, 28 U. S. C. § 753 (f) (1964 ed., Supp. V), but, under Coppedge, 369 U. S., at 446, it only entitled the appellant to a transcript sufficient to determine nonfrivo-lousness. The fact that Congress amended the statute to give the appellant the right to a complete transcript demonstrates (a) that Congress was aware of this difference, and (b) that recognition of a right in a § 2255 context which is only “almost” as valuable as the right on direct appeal is consistent with the intent of Congress.

       As Judge Craven noted in Jones v. Superintendent, Virginia State Farm, 460 F. 2d 150, 153 n. 4 (CA4 1972), rehearing denied, 465 F. 2d 1091, cert. denied, 410 U. S. 944 (1973): “It has been noted time and again that the delay in deciding appeals is often attributable to delay in getting a transcript.” Since the allowance of bail pending appeal is almost routine in the federal system (a routine, incidentally, which might well be restudied), defendants may postpone their incarceration by delaying their appeals as long as possible, and, thus, they have a practical motivation for not ordering transcripts any sooner than necessary.

       Appeals are now filed in approximately 75% of criminal cases in which a defendant is convicted after trial. The rate has increased steadily from approximately 46% in Fiscal Year 1966 to approximately 75% in Fiscal Year 1973, where it has remained. See Annual Reports of the Director of the Administrative Office of the United States Courts, Tables Bl, D4 (1966-1969, 1971-1975) (compare total criminal appeals commenced with total convictions after trial). Since appeals are taken from such a high percentage of convictions after trial, since experience teaches us that the appeal rate is more apt to increase than decrease, and since an appreciable number of transcripts are no doubt prepared in § 2255 proceedings already, a rule requiring the automatic preparation of a transcript would have a minimal impact on the budget. Even if the total number of transcripts would increase significantly, it is doubtful that there would be a parallel increase in cost because there would surely be a substantial saving in substituting a routine practice for the present practice of ordering transcripts individually, often at a time when the court reporter is faced with an appellate deadline.

       1 use the words “few dollars” advisedly because the entire cost of subsidizing the defense of indigents, including the fees and expenses of appointed counsel, has amounted to between 5% and 9% of the expenditures for the lower federal courts in recent years, which in turn have been less than Mo of 1% of the national budget. Annual Reports of the Director of the Administrative Office of the United States Courts VI-3 (1975), IV-2 (1974), III-3 (1973), III-3 (1972); Budget of the United States Government: Fiscal Year 1977, p. 153 (1976).

       Cf. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U. S. 738, 746-747; Haines v. Kerner, 404 U. S. 519, 520-521; Conley v. Gibson, 355 U. S. 41, 45-46.