author: Per Curiam. Mr. Justice Powell,

text:
    ESTES et al. v. METROPOLITAN BRANCHES OF THE DALLAS NAACP et al.
    No. 78-253.
    Argued October 29, 1979
    Decided January 21, 1980

      Warren Whitham argued the causé for petitioners in No. 78-253. With him on the brief was Mark Martin. Robert L. Blumenthal argued the cause for petitioners in No. 78-282. With him on the briefs was Robert H. Mow, Jr. James A. Donohoe argued the cause and filed a brief for petitioners in No. 78-283.

      E. Brice Cunningham argued the cause for respondents Metropolitan Branches of the Dallas NAACP et al. With him on the brief were Nathaniel R. Jones, Merle W. Loper, and Louis R. Lucas. Edward B. Cloutman III argued the cause for respondents Tasby et al. With him on the brief were Jack Greenberg, James M. Nabrit III, and Bill Lann Lee.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Days, Sara Sun Beale, Brian K. Landsberg, and Mildred M. Matesich.

      Together with No. 78-282, Curry et al. v. Metropolitan Branches of the Dallas NAACP et al.; and No. 78-283, Brinegar et al. v. Metropolitan Branches of the Dallas NAACP et al., also on certiorari to the same court.

      H. Ron White filed a brief for the Dallas Alliance et al. as amici curiae urging reversal in all cases.

   Per Curiam.

The writs of certiorari are dismissed as improvidently granted.

Mr. Justice Marshall took no part in the consideration or decision of these cases.

Mr. Justice Powell,

with whom Mr. Justice Stewart and Mr. Justice Rehnquist join,

dissenting.

The Court today dismisses the writs previously granted in this litigation and thereby reinstates the ruling of the Court of Appeals. The suit now will be returned to the District Court for elaboration of that court’s conclusions on the feasibility of extensive busing to achieve racial balance in the Dallas public schools. The Court of Appeals directed the trial court to supplement the record with formal studies of the anticipated times and distances of likely bus routes, and to make additional findings on desegregation in the city’s high schools.

Although the remand is narrow, aimed solely at the sufficiency of the record on which the District Court based its desegregation order, I do not think it is justified. After studying the schools of the Dallas Independent School District through the many years of this litigation, the trial judge drew on his familiarity with Dallas and its schools, and on the advice of many community groups, to fashion an effective and fair desegregation order. The Court of Appeals failed to accord proper deference to the District Court’s conscientious execution of this delicate task.

In addition, this case presents a long-needed opportunity to re-examine the considerations relevant to framing a remedy in a desegregation suit. It is increasingly evident that use of the busing remedy to achieve racial balance can conflict with the goals of equal educational opportunity and quality schools. In all too many cities, well-intentioned court decrees have had the primary effect of stimulating resegregation. The experience in Dallas during this litigation presents a striking illustration of this problem. If the District Court orders substantial additional busing, as the Court of Appeals apparently thinks it should, recent history suggests that the Dallas school district will be well on the road to the “separate but equal” conditions mistakenly approved in Plessy v. Ferguson, 163 U. S. 537 (1896). Such an outcome is no less real or less regrettable when caused by courts with benign motives. The promise of Brown v. Board of Education, 347 U. S. 483 (1954), cannot be fulfilled by continued imposition of self-defeating remedies.

I

The Dallas Independent School District (School District) has been in desegregation litigation since 1955, although the present case is not part of the original suit. During this quarter of a century, the School District has grown into the eighth largest school district in the country, covering 351 square miles and spanning 35 miles at its widest point. Since the present action first was tried in 1971, the student population of the district has changed dramatically. Total enrollment has dropped from 163,000 to 133,000, while the racial distribution of students has shifted from 69% Anglo in 1971 to 33.5% Anglo, 49.1% black, and 16.3% Mexican-American in 1979. There were 112,000 Anglo students in the School District in 1970; there are now fewer than 45,000.

This suit was brought by several parents, acting on behalf of their children, against the superintendent and the Board of Trustees of the School District (Board). Other parents groups have intervened in the suit. In the summer of 1971, the District Court found that “elements” of a segregated school system “still remain” in the Dallas schools. Tasby v. Estes, 342 F. Supp. 945, 947 (ND Tex. 1971). The court imposed a number of remedies, including the busing of approximately 15,000 students. The original plaintiffs appealed to the Court of Appeals for the Fifth Circuit for more extensive reassignment and transportation of pupils. That court declared that “nothing less than the elimination of predominantly one-race schools is constitutionally required. . . .” Tasby v. Estes, 517 F. 2d 92, 103, cert. denied, 423 U. S. 939 (1975). Finding that the District Court’s decree failed to satisfy this standard, the Court of Appeals remanded for the formulation of a new desegregation plan.

In a month-long trial on remand, the District Court considered in detail six plans submitted by the various parties and a court-appointed expert. It heard nearly 50 witnesses, including numerous experts, and produced a trial transcript of some 4,000 pages. The court also conferred with concerned community groups, the most prominent of which was the Educational Task Force of the Dallas Alliance (Alliance), a multiracial, nonpartisan organization. In a thorough opinion, Tasby v. Estes, 412 F. Supp. 1192 (ND Tex. 1976), the District Court found that the decline in Anglo enrollment between 1971 and 1976 was not the result of actions taken by the Board. In fact, the court noted the Board’s continuing “good faith” efforts to establish a unitary school system. Id., at 1207. See Pasadena City Bd. of Education v. Spangler, 427 U. S. 424, 435-436 (1976). The court’s duty, it asserted, was to adopt a plan that would “realistically and effectively” achieve desegregation in light of demographic changes in the School District. 412 F. Supp., at 1207.

With careful attention to the special characteristics and history of the School District, the District Court promulgated a progressive and comprehensive plan that drew heavily on the proposals of the Alliance. For purposes of student assignment, the plan divides the School District into six subdistricts. In integrated areas within each subdistrict, present student assignments are retained wherever possible. In other areas, children in grades K-3 remain in neighborhood schools; those in grades 4-8 are assigned to central schools in each subdis-triet; and high school students are assigned to schools in their own subdistricts on the basis of geographical attendance zones. The plan provides for a number of “magnet high schools” that offer enriched educational programs. The pupil assignment plan is supplemented by majority-to-minority transfers upon request.

This case now focuses on student assignment and busing. Each of the six plans considered by the District Court provided for substantial busing. Although the court did not estimate the number of pupils to be bused under its decree, the Alliance proposal which paralleled the court’s plan anticipated the busing of some 20,000 students. The court concluded that the racial composition of the student population in each subdistrict "will approximate the racial makeup of the [district] as a whole, with the exception of [East] Oak Cliff,” a black neighborhood. Id., at 1204.

Respondents argue that the District Court’s plan leaves 62 schools, about one-third of the 176 schools in the district, with “one-race” student bodies (defined as those where more than 75% of the students are of one race). Fifty-two of these schools would be predominantly black, nine Anglo, and one Mexican-American. A majority of these one-race schools result from the District Court’s refusal to bus very young children. This Court has recognized that concern for the health and welfare of younger children may dictate their exclusion from student transportation plans, see Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 31 (1971), and respondents do not dispute that feature of the District Court order. In addition, several high schools have one-race student bodies because the District Court declined to order the busing of high school students. It noted that “of approximately 1,000 Anglos ordered to be transported to formerly all-black high schools under this Court’s 1971 student assignment plan, fewer than 50 Anglo students attend those schools today.” 412 F. Supp., at 1205. The court also concluded that the establishment of magnet high schools was the “most realistic, feasible, and effective method for eliminating the remaining vestiges of a dual [school] system on the 9-12 level. . . .” Ibid.

Viewed on a. geographic basis, the order left 28 “predominantly black” schools in East Oak Cliff, which is bounded by the Trinity River bottom on one side and by Interstate 35 on the other. The court found that the “practicalities of time and distance” prevent the effective integration of the schools in this neighborhood through busing. Id., at 1204. In contrast, the Seagoville subdistrict remains predominantly white. Seagoville, however, is “geographically isolated” from the rest of the city, Tasby v. Estes, 572 F. 2d 1010, 1013 (CA5 1978), and its school population represents less than 2% of the School District’s student body.

The Court of Appeals was not impressed by the District Court’s carefully structured plan. It concentrated almost exclusively on the “large number of one-race schools” remaining in Dallas. Id., at 1012.

“We cannot properly review any student assignment plan that leaves many schools in a system one race without specific findings by the district court as to the feasibility of [student assignment] techniques. . . . There are no adequate time-and-distance studies in the record in this case. Consequently, we have no means of determining whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools or the use of transportation to eliminate the large number of one-race schools still existing.” Id., at 1014.

The Court of Appeals remanded “for the formulation of a new student assignment plan and for findings to justify the maintenance of any one-race schools that may be part of that plan.” Id., at 1018 (emphasis added).

II

The duration and complexity of this litigation demonstrate the difficulty of providing effective relief in a school desegregation case. The school board and the court must consider many economic, social, and educational factors, and those factors vary widely from community to community. Courts frequently are caught between the constitutional prohibition against segregation and the severe limitations on their ability to implement an effective plan with public support. See Columbus Bd. of Education v. Penick, 443 U. S. 449, 486-488 (1979) (Powell, J., dissenting). Consequently, this Court has been reluctant to give more than general instructions for desegregation orders, and those instructions have not always been completely consistent. The result in too many instances has been confusion in the lower courts. See infra, at 449-450.

I believe that two rules provide the basic outline for responsible exercise of the courts’ equitable powers in school desegregation cases. First, “the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation.” Milliken v. Bradley, 433 U. S. 267, 280 (1977) (Milliken II). The constitutional deprivation must be identified accurately, and the remedy must be related closely to that deprivation. Otherwise, a desegregation order may exceed both the power and the competence of courts. Second, “[t]he measure of any desegregation plan is its effectiveness.” Davis v. School Comm’rs of Mobile County, 402 U. S. 33, 37 (1971). A court must act decisively to remove purposeful segregation, but it also must avoid the danger of inciting resegregation by unduly disrupting the public schools.

Much of-the confusion that has plagued this litigation derives from neglect of these principles. The District Court failed to identify the link between the constitutional violation and the desegregation remedy, and the Court of Appeals showed little concern for either that problem or the question of effectiveness. Unless courts carefully consider those issues, judicial school desegregation will continue to be a haphazard exercise of equitable power that can, "like a loose cannon, . . . inflict indiscriminate damage” on our schools and communities.

A

The opinion of the Court of Appeals focuses almost entirely on the one-race schools remaining in the School District. This preoccupation apparently derives from the oft-repeated language in Green v. County School Board, 391 U. S. 430, 442 (1968), that desegregation must create “a system without a ‘white’ school [or] a ‘Negro’ school.” As I have noted before, this language was suitable to the small rural county before the Court in that case, where there were only two schools and 1,300 schoolchildren of both races scattered throughout the county. But it makes no sense to apply that statement to the Dallas Independent School District or any major metropolitan school district. In large cities, the principal cause of segregation in the schools is residential segregation, which results largely from demographic and economic conditions over which school authorities have no control. E. g., Pasadena City Bd. of Education v. Spangler, 427 U. S., at 435-437; see Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 222-223 (1973) (Powell, J., concurring in part and dissenting in part). In cases since Green, the Court has stated explicitly that the existence of “predominantly white or predominantly black [schools,] without more,. . . does not offend the Constitution." Dayton Bd. of Education v. Brinkman, 433 U. S. 406, 417 (1977); Milliken II, supra, at 280, n. 14; Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S., at 26. It is puzzling that many trial and appellate courts continue to misapply Green and largely to ignore more recent statements on this issue.

The important distinction is between “desegregated” schools and “integrated” schools. There can be no legitimate claim that “racial balance” in the public schools is constitutionally required. Milliken v. Bradley, 418 U. S. 717, 740-741 (1974) (Milliken I). Rather, the Constitution mandates that no school system be structured to segregate the races. The proposition was stated fully in Swann:

“Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.” 402 U. S., at 23.

The question in these cases, as in countless others, is how equitably to remedy unconstitutional state action or inaction. A desegregation decree “must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.’ ” Milliken II, 433 U. S., at 280, quoting Milliken I, supra, at 746. But the courts cannot pursue this goal responsibly without identifying those features of the current situation that can be attributed to the previous dual system.

In this litigation, the District Court ordered the busing of 15,000 students in 1971, 342 F. Supp., at 956, while the current decree is likely to result in the transportation of some 20,000 students. See supra, at 442. On the record before us, we cannot determine whether the trial court made findings of constitutional violations that justified these and other remedies that were ordered. For the purpose of deciding the cases in this Court, we may assume that such violations were duly found. In any event, since the 1975 ruling of the District Court this litigation has concentrated solely on the need to eliminate one-race schools through further busing. The petition for certiorari raised only that issue, see Pet. for Cert, in No. 78-253, pp. 2-3, and both the Board, the principal petitioner here, and the Dallas Alliance have asked only that the District Court’s order be reinstated. See Brief for Petitioners in No. 78-253, pp. 71-72; Brief for Dallas Alliance as Amicus Curiae 28. Consequently, I believe this Court should reach the merits of the remedial question and review the decision of the Court of Appeals that the District Court must explain why “any” one-race schools remain in Dallas. 572 F. 2d, at 1018.

B

Court orders to remedy constitutional deprivations in formerly segregated school systems must be drawn “in light of the circumstances present and the options available,” Green v. County School Board, 391 U. S., at 439, “taking into account the practicalities of the situation.” Davis v. School Comm’rs of Mobile County, 402 U. S., at 37. Although this Court’s guidance in desegregation cases necessarily has been general, its emphasis on effectiveness and practicalities reflects an appreciation that perfect solutions may be unattainable in the context of the demographic, geographic, and sociological complexities of modem urban communities. The imperfect nature of court action in school cases is evident in the phenomenon of self-defeating “remedies,” desegregation plans and continuing court oversight so unacceptable that many parents seek to avoid the reach of the court’s decree. The impact of such remedies may be seen in higher enrollment in private schools, in further migration to the suburbs, or in refusals to move into the school district.

This Court has not considered seriously the relationship between the resegregation problem and desegregation decrees. The most helpful precedent is Pasadena City Bd. of Education v. Spangler, which arose several years after a local desegregation plan had been implemented. We held in that case that the Constitution does not require that a desegregation decree be modified periodically as migration patterns shift the distribution of the races within the school district. The Court recognized that, absent further segregation by the State, there is no constitutional obligation to remedy resegre-gation after an approved plan is implemented. That holding accents the need for courts to consider with care the impact a remedy is likely to have on resegregation. As Pasadena establishes, once resegregation occurs without state action courts have no power to impose an additional remedy.

Surprisingly few courts, however, have understood this imperative. One exception is the decision on remand in Milliken I, 418 U. S. 717 (1974), where a desegregation plan that left many one-race schools was approved by the Court of Appeals for the Sixth Circuit. The court explained that the available alternatives would have “accelerate [d] the trend toward rendering all or nearly all of Detroit’s schools so identifiably black as to represent universal school segregation. . . .” Bradley v. Milliken, 540 F. 2d 229, 239 (1976), aff’d, Milliken II, supra. In a case involving a school district in Alabama, however, the Court of Appeals for the Fifth Circuit approved a plan 'that will probably result in an all-black student body, where nothing in the way of desegregation is accomplished and where neither the white students nor black students are benefited.’ ” Lee v. Macon County Bd. of Education, 465 F. 2d 369, 370 (1972). Even though the court acknowledged that the remedy was self-defeating, it ordered the plan implemented unless the local school board could come forward with a plan “equally effective” in eliminating one-race schools, Ibid.

The pursuit of racial balance at any cost — the unintended legacy of Oreen — is without constitutional or social justification. Out of zeal to remedy one evil, courts may encourage or set the stage for other evils. By acting against one-race schools, courts may produce one-race school systems. Parents with school-age children are highly motivated to seek access to schools perceived to afford quality education. A desegregation plan without community support, typically one with objectionable transportation requirements and continuing judicial oversight, accelerates the exodus to the suburbs of families able to move. The children of families remaining in the area affected by the court’s decree are denied the opportunity to be part of an ethnically diverse student body. See Parents Assn. of Andrew Jackson High School v. Ambach, 598 F. 2d 705, 717 (CA2 1979). The general quality of the schools also tends to decline when substantial elements of the community abandon them.

The effects of resegregation can be even broader, reaching beyond the quality of education in the inner city to the life of the entire community. When the more economically advantaged citizens leave the city, the tax base shrinks and all city services suffer. And students whose parents elect to live beyond the reach of the court decree lose the benefits of attending ethnically diverse schools, an experience that prepares a child for citizenship in our pluralistic society.

Ill

The District Court in this litigation was properly concerned over resegregation and community support for the Dallas schools. The facts before the court made that concern unavoidable. In the five years following the 1971 desegregation decree, the proportion of Anglo students in the Dallas public schools had dropped by almost half. That destabilizing trend has continued in the School District, as reflected by the following figures:

Percentage of Anglo Students Year
69% 1971
41.1% 1975
38.5% 1979

In view of these far-reaching demographic changes, the futility of administering larger doses of a remedy that has failed is self-evident. In this situation, I can see no justification for reverting now to “time and distance studies” with the goal of attaining increased racial balance through additional busing.

A desegregation remedy that does not take account of the social and educational consequences of extensive student transportation can be neither fair nor effective. The District Court’s plan is properly sensitive both to existing demographic realities and to the likely consequences of increased busing. The Court of Appeals seriously erred when it remanded this case with a mandate that seems certain to accelerate the destructive trend toward resegregation.

As this Court should not tolerate this error, even by silence that might give rise to an inference of approval, I dissent from the Court’s failure to decide the case and reinstate the District Court’s plan — a plan that does have promise for success.

       The original plaintiffs, respondents here, represent a class of black and Mexican-American students. The Curry petitioners represent a group of North Dallas pupils, and the Brinegar petitioners represent a class of persons living in an integrated area of East Dallas.

       The Task Force consisted of seven Mexican-Americans, seven Anglos, six blacks, and one American Indian. The Dallas Alliance comprises 77 cooperating organizations, including local branches of the AFL-CIO and the Chamber of Commerce, religious groups, civic organizations, and several local chapters of the NAAOP. , The Alliance Task Force proposed a comprehensive desegregation plan that largely was adopted by the District Court. Of course, a group’s participation in the Alliance need not signify approval of the desegregation plan proposed by the Educational Task Force, but the Alliance clearly has many ties to the entire Dallas community.

       In a brief amicus curiae to the Court, the Alliance stated that the plan submitted by its Educational Task Force “reflects compromise” and was reached by consensus. Brief for Dallas Alliance as Amicus Curiae 21.

       The District Court ordered the School District to establish seven new magnet high schools by 1979. Each must offer special career training, and the racial makeup of each school must be within 10% of the racial distribution of the School District’s high school population. Tasby v. Estes, 412 F. Supp. 1192, 1215-1216 (ND Tex. 1976). Free transportation is available for students at magnet schools.

       The Court of Appeals correctly determined that the District Court’s plan is deficient in not explicitly providing transportation at public expense to children who exercise this option. Tasby v. Estes, 572 F. 2d 1010, 1015 (CA5 1978).

       The initial District Court ruling also dealt, apparently to the satisfaction of the plaintiffs, with staff desegregation, school construction, bilingual education for Mexican-Americans, and other programs designed to supplement the opportunities of minority students. Tasby v. Estes, 342 F. Supp. 945, 953 (ND Tex. 1971). These matters are no longer issues in this litigation.

       The estimates of the number of students to be bused ranged from 14,000 under the plan originally proposed by the Board to 69,000 under the NAACP plaintiffs’ Plan A.

       Tr. of Oral Arg. 46.

       In their brief to this Court, the NAACP respondents concede that more than half of the one-race schools are in the elementary grade, K-3 category. Brief for Respondents NAACP et al. 9.

       See Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp. Prob. 57, 87-102 (Autumn 1978).

       The language quoted comes from Mr. Justice Stewart’s dissenting opinion in Stump v. Sparkman, 435 U. S. 349, 367 (1978).

       See Coleman, New Incentives for Desegregation, 7 Human Bights 10, 11 (Fall 1978); Farley, Residential Segregation and Its Implications for School Integration, 39 Law & Contemp. Prob. 164 (Winter 1975).

       Some federal courts continue to read Swann v. Charlotte-Mecklenburg Bd. of Education as requiring extensive transportation because of its language endorsing the need “to achieve the greatest possible degree of actual desegregation.” 402 U. S., at 26. Swann, however, simply laid down a broad rule of reason under which desegregation remedies must remain flexible and due consideration must be given to other values and interests. In Swann, we recognized that special difficulties arise when extensive busing is used in metropolitan areas “with dense and shifting population [s], numerous schools, [and] congested and complex traffic patterns.” Id., at 14. Although Swann approved pupil transportation as a remedial device, the Court said that transportation orders would be suspect “when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process.” Id., at 30-31. The Court’s more recent decisions have dispelled any doubt that may have existed as to whether Swann mandates busing to establish racial balance. In this regard, one should note that the Court of Appeals in this case failed to mention Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I), Dayton Bd. of Education v. Brinkman, or Milliken II, while it relied heavily, and mistakenly, upon Green. Tasby v. Estes, 517 F. 2d 92, 103 (1975).

       Last Term, the Court decided school desegregation cases from Columbus and Dayton, Ohio. Columbus Bd. of Education v. Penick, 443 U. S. 449 (1979); Dayton Bd. of Education v. Brinkman, 443 U. S. 526 (1979) (Dayton II). As the dissent by Mr. Justice RehNQUist argued, the opinions in those cases appeared to depart from prior precedents of this Court. But instead of criticizing either the reasoning or the holdings of any of those cases, the Court simply avoided their force by accepting uncritically the findings made by the courts below. In Columbus, it emphasized that the District Court had found “purposefully segregative practices with current, systemwide impact.” 443 U. S., at 466, citing 429 F. Supp. 229, 252, 259-260, 264, 266 (SD Ohio 1977). Although the District Court had made no such findings in Dayton II, the Court of Appeals for the Sixth Circuit tailored its own factual findings to accord with those in Columbus, and these again were adopted by this Court. 443 U. S., at 538-540.
      In the instant case, neither the District Court nor the Court of Appeals made comparable findings.

       In United States v. Scotland Neck Bd. of Education, 407 U. S. 484, 491 (1972), we disapproved an attempt to create a small new school district within a county conceded to have been operating a dual school system. In a concluding sentence, the Court stated that while the possibility of resegregation “may be cause for deep concern to the respondents, it cannot ... be accepted as a reason for achieving anything less than complete uprooting of the dual-public school system.” The Court concluded that the new school district would “interfere] with the desegregation of the . . . [c]ounty [s]chool system.” Id., at 489. Given the context of the Court’s passing reference to resegregation, Scotland Neck affords no guidance for the more usual desegregation case.

       See Mapp v. Chattanooga Bd. of Education, 525 F. 2d 169 (CA6 1975), cert. denied, 427 U. S. 911 (1976). The California Supreme Court has expressly authorized the consideration of resegregation patterns in designing decrees for school litigation under the State Constitution. Crawford v. Los Angeles Bd. of Education, 17 Cal. 3d 280, 308-309, 551 P. 2d 28, 47 (1976).

       The position taken by counsel for one group of respondents in these cases is identical to that of the court in Lee v. Macon County Bd. of Education. At oral argument, counsel was asked if he still would support the remand ordered by the Court of Appeals if he were certain that additional busing “would result in these black children next year or the year afterwards . . . going to an all-black school because there wouldn’t be any whites or any people of any other color to go to school with [in the District].” Counsel replied that his clients’ position would be no different in that situation. Tr. of Oral Arg. 49.

       As I noted in dissent in tbe Columbus ease, courts are the branch of government least competent to provide long-range solutions to the reseg-regation problem. Because the causes of segregation in residential housing are usually beyond judicial correction, wider solutions that will be acceptable to concerned parents must be sought by legislators and executive officials. See 443 U. S., at 480-481 (Powell, J., dissenting). See also Coleman, swpra n. 12, at 48-49; Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds. 1976).

       The District Court appears to have succeeded in enlisting active support from much of the Dallas community for the desegregation plan. The voters have approved an $80 million school bond issue that will assist in implementing the court’s decree. In addition, business and civic organizations have “adopted” 144 schools in a community-wide effort to channel volunteers, equipment, and private money to those schools, and to provide part-time and full-time job opportunities for students in those schools. See Brief for Dallas Alliance as Amicus Curiae 25.

       The Anglo population in the School District is likely to fall off even more since current Anglo enrollment is highest in the high schools and declines steadily through the lower grades.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SECRETARY OF THE NAVY et al. v. HUFF et al.
    No. 78-599.
    Argued November 6, 1979
    Decided January 21, 1980

      Kent L. Jones argued the cause pro hac vice for petitioners. On the briefs was Solicitor General McCree.

      Alan Dranitske argued the cause for respondents. With him on the brief was David Addlestone.

   Per Curiam.

The question in this case is whether Navy and Marine Corps regulations violate 10 U. S. C. § 1034 by requiring military personnel on an overseas base to obtain command approval before circulating petitions addressed to Members of Congress. Section 1034 provides that “[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States.”

I

In 1974, Frank L. Huff, Robert A. Falatine, and Robert E. Gabrielson were serving in the Marine Corps at the United States Marine Corps Air Station in Iwakuni, Japan. On separate occasions, each of them sought the base commander’s permission to circulate a petition addressed to a Member of Congress. The petitions dealt with the use of military forces in labor disputes within the United States, amnesty for men who resisted the draft or deserted the Armed Forces during the Vietnam war, and United States support for the Government of South Korea. The first two requests proposed circulation within the base; the last proposed circulation both within and without the base. The commander denied the first two requests, but he allowed the petition about South Korea to circulate within the base.

On another occasion, Huff and Falatine each asked to distribute a leaflet annotating the Declaration of Independence and the First Amendment with commentary critical of military commanders who restrict petitioning. The base commander denied Falatine’s request on the ground that the commentary was disrespectful and contemptuous, but on the same day and without explanation, he granted Huff leave to distribute the same material. Finally, respondents Huff and Falatine were arrested for circulating outside the base a petition to a Member of Congress that objected to American support for the Government of South Korea. They were charged with violating regulations because they had circulated the petition without requesting command approval. Huff was convicted and sentenced to confinement, forfeiture of half-pay, and reduction in grade. The charges against Falatine were dismissed for lack of evidence.

The respondents then brought a class action in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against future enforcement of four Navy and Marine Corps regulations. Each regulation provides, in relevant part, that members of the Marine Corps shall not “originate, sign, distribute, or promulgate petitions, publications, ... or other . . . written material . . . on any military installation on duty or in uniform, or anywhere within a foreign country irrespective of uniform or duty status, unless prior command approval is obtained.” The respondents contended that this requirement violated 10 U. S. C. § 1034 and the First Amendment. The petitioners conceded that the base commander had misapplied the regulations when he denied respondents permission to circulate their petitions within the base, and the respondents sought no relief for these past wrongs. Thus, the issue presented was the facial validity of the regulations that require prior command approval for petitioning inside and outside the Iwakuni air station.

On cross-motions for summary judgment, the court declared the regulations invalid with respect to materials distributed within the base during off-duty hours and away from restricted or work areas. The court upheld the regulations with respect to distributions outside the base. In that situation, the court concluded, command approval was necessary to prevent political activity in violation of the Status of Forces Agreement between the United States and Japan. 413 F. Supp. 863 (1976). The petitioners appealed, but the respondents did not cross appeal.

The Court of Appeals for the District of Columbia Circuit affirmed in part and vacated in part. 188 U. S. App. D. C. 26, 575 F. 2d 907 (1978). It concluded that the only real controversy between the parties concerned the application of the challenged regulations to petitions addressing Members of Congress. The court therefore considered only the validity of the regulations as they affect circulation within the base of petitions to Congress. It held that requiring prior command approval for the circulation of such petitions violated 10 U. S. C. § 1034. That statute, the court concluded, gives both individuals and groups the right to petition Members of Congress. It allows only such restrictions on that right as are “necessary to the security of the United States.” Since the record in this case showed that the Iwakuni base was not within “an actual and current combat zone,” the court concluded that petitioners had not shown that a prior restraint on petitioning within the base was necessary to the national security. The court therefore did not reach the question whether the command approval requirement also violated the First Amendment.

We granted certiorari to consider whether the challenged regulations, as they affect the circulation of petitions within a military base, violate 10 U. S. C. § 1034. 440 U. S. 957 (1979).

II

In Brown v. Glines, ante, p. 348, decided today, we concluded that “Congress enacted § 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels.” Ante, at 359. Nothing in the legislative history suggests that Congress intended to authorize the unrestricted circulation of petitions within a military base. Indeed, both Congress and this Court have determined that “the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale.” Ante, at 360. Thus, in construing statutes that affect such matters, we must not limit a commander’s authority more than the legislative purpose requires. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the purpose of § 1034 without unnecessarily endangering a commander’s ability to preserve morale and good order among his troops. In Glines, therefore, we held that § 1034 does not invalidate regulations requiring members of the Armed Forces to secure command approval before circulating petitions within a military base.

Since the Court of Appeals reached a contrary conclusion in this case, its judgment is

Reversed.

Mr. Justice Marshall took no part in the consideration or decision of this case.

[For dissenting opinion of Mr. Justice Brennan, see ante, p. 361.]

Mr. Justice Stewart and Mr. Justice Stevens dissent. For the reasons stated in their dissenting opinions in Brown v. Glines, ante, pp. 374 and 378, they would affirm the judgment of the Court of Appeals in this ease.

       The class consists of “all members of the Marine Corps stationed at, assigned to, or on duty at the Marine Corps Air Station at Iwakuni, Japan.” 413 F. Supp. 863, 864-865 (1976).
      The respondents also sought a judgment expunging Falatine’s arrest record, invalidating Huff’s conviction, and restoring to Huff all benefits denied as the result of his conviction. Id., at 865. Those claims, however, are no longer part of the case. See infra, at 456, and n. 4.

       Fleet Marine Force Pacific Order 5370.3, ¶ 3 (b) (1974). The full subparagraph reads:
      “No Fleet Marine Force, Pacific or Marine Corps Bases, Pacific, personnel will originate, sign, distribute, or promulgate petitions, publications, including pamphlets, newspapers, magazines, handbills, flyers, or other printed or written material, on board any ship, craft, aircraft, or in any vehicle of the Department of the Navy, on any military installation on duty or in uniform, or anywhere within a foreign country irrespective of uniform or duty status, unless prior command approval is obtained.”
      The other three regulations, although different in geographic scope, use substantially identical language. See Pacific Fleet Instruction 5440.3C, § 2604.2 (2) (1974); First Marine Aircraft Wing Order 5370.1B, ¶ 5 (a) (2) (1974); Iwakuni Marine Corps Air Station Order 5370.3A, |5(a) (2) (1973).
      Each regulation directs a commander to “control or prohibit” the circulation of written materials that, in his judgment, would:
      “(1) Materially interfere with the safety, operation, command, or control of his unit or the assigned duties of particular members of the command; or,
      “(2) Present a clear danger to the loyalty, discipline, morale, or safety to [sic] personnel of his command; or,
      “(3) Involve distribution of material or the rendering of advice or counsel that causes, attempts to cause, or advocates, insubordination, disloyalty, mutiny, refusal of duty, solicits desertion, discloses classified information, or contains obscene or pornographic matter; or,
      “(4) Involve the planning or perpetration of an unlawful act or acts.” Fleet Marine Force Pacific Order 5370.3, ¶ 4 (a) (1974).
      See Pacific Fleet Instruction 5440.3C, § 2604.2 (4) (1974); First Marine Aircraft Wing Order 5370.IB, ¶ 6 (c) (1974); Iwakuni Marine Corps Air Station Order 5370.3A, ¶5 (c) (1973). The respondents' complaint did not challenge these standards, App. 5-7, and the Court of Appeals did not review them, 188 U. S. App. D. C. 26, 32-33, 575 F. 2d 907, 913-914 (1978). Thus, the only issue before us is the validity of the prior approval requirement.

       Article XVI of the Status of Forces Agreement between the United States and Japan specifically proscribes political activity by American servicemen within the host country. [1960] 11 U. S. T. 1664, T. I. A. S. No. 4510.

       The respondents had sought expungement of Falatine’s arrest record, invalidation of Huff's conviction for petitioning outside the base without permission, and restoration of all benefits denied to Huff as the result of his conviction. Since the District Court found the regulations valid as applied to petitioning outside the base, the court denied these claims for relief. 413 F. Supp., at 870.

       At oral argument, the respondents also contended that regulations requiring members of the Armed Forces to secure command approval before circulating petitions within a military base violate the First Amendment. Tr. of Oral Arg. 30. Our decision today in Brown v. Glines, ante, p. 348, sustains the facial validity of this type of regulation and, therefore, disposes of respondents’ First Amendment contention.
      We have had no occasion, either in Glines or in this case, to consider a claim that regulations were misapplied in a particular instance. See ante, at 357, n. 15; supra, at 456. We have noted, however, that regulations in each Armed Service were promulgated under a Department of Defense directive that “advises commanders to preserve servicemen’s ‘right of expression ... to the maximum extent possible, consistent with good order and discipline and the national security.’ ” Brown v. Glines, ante, at 355. A member of the service who thinks that his commander has misapplied the regulations can seek remedies within the service. See, e. g., Uniform Code of Military Justice, Art. 138, 10 U. S. C. § 938. Furthermore, the federal courts are open to assure that, in applying the regulations, commanders do not abuse the discretion necessarily vested in them.


author: Pee Cukiam. Mr. Justice Blackmun,

text:
    HATZLACHH SUPPLY CO., INC. v. UNITED STATES
    No. 78-1175.
    Argued December 5, 1979
    Decided January 21, 1980

      Nathan Lewin argued the cause for petitioner. With him on the briefs were Jamie S. Gorelick and Mark Landesman.

      Kent L. Jones argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Me-

      Cree, Acting Assistant Attorney General Daniel, Eloise E. Davies, and Frank A. Rosenfeld.

   Pee Cukiam.

We granted certiorari in this case to consider whether the United States may be held liable for breach of an implied contract of bailment when goods are lost while held by the United States Customs Service (USCS) following their seizure for customs violations. 441 U. S. 942 (1979). The Court of Claims granted the Government’s motion for summary judgment, finding that petitioner had failed to state a claim upon which the court could grant relief. 217 Ct. Cl. 423, 579 F. 2d 617 (1978). We vacate the Court of Claims’ judgment and remand the case for further proceedings.

Petitioner imported camera supplies and other items which USCS seized upon their arrival in port and declared forfeited for customs violations. On petitioner’s appropriate procedure for relief, USCS agreed to return the forfeited materials upon petitioner’s payment of a $40,000 penalty. When the shipment was returned to petitioner, however, merchandise valued in excess of $165,000 was missing. Petitioner brought suit under the Tucker Act, 28 U. S. C. § 1491, for the value of the missing merchandise, alleging breach of an implied contract of bailment.

The Court of Claims initially conceded that “the statutes cited by the plaintiff, along with the action of the USCS in agreeing to return the seized goods upon payment of a $40,000 fine by Hatzlaehh, could make a strong case for the existence of an implied-in-fact contract properly to preserve and redeliver all the goods to Hatzlaehh.” 217 Ct. Cl., at 428, 579 F. 2d, at 620. The court noted, however, that 28 U. S. C. § 2680 (c) excepts from the tort liability of the Government under the Federal Tort Claims Act any claim “arising in respect of . . . the detention of any goods or merchandise by any officer of customs.” Because in its view this provision would bar a tort claim for the loss that occurred in this case, the court thought that it “would certainly be a trespass on congressional prerogatives for this court now to hold that, by seizing subject to forfeiture certain merchandise, the Government assented to, or agreed to be bound by, an implied-in-fact contract to return the merchandise whole.” 217 Ct. Cl., at 430, 579 F. 2d, at 621. The Court of Claims accordingly declined to find an implied-in-fact contract, remarking that it could not “judicially allow by the back door a claim which was, rather clearly and explicitly, legislatively barred at the front.” Ibid.

We cannot agree with the Court of Claims that § 2680 (c) is such a major obstacle to awarding judgment against the Government on an implied contract. Section 2680, which is entitled “Exceptions,” declares that “[t]he provisions of this chapter . . . shall not apply to” certain kinds of claims, which are then described. Among the excepted claims are those specified in § 2680 (c) — claims “arising in respect of . . . the detention of any goods or merchandise” by any customs officer. The section, although excluding certain claims from the statutory waiver Of immunity from tort liability, does not limit or otherwise affect immunity waivers contained in other statutes such as the Tucker Act, which invests the Court of Claims with jurisdiction to render judgment “upon any claim against the United States founded . . . upon any express or implied contract with the United States.”

Neither does its legislative history support the view that § 2680 (c), first passed in 1946 as part of the Federal Tort Claims Act, was intended to declare the immunity of the United States from express or implied contracts with customs officers that would, or might, otherwise be within the jurisdiction of the Court of Claims under the Tucker Act. On the contrary, it appears that in exempting from the Tort Claims Act those claims described in § 2680 (c), Congress did not further intend to disturb other existing statutory remedies. H. R. Rep. No. 2245, 77th Cong., 2d Sess., 10 (1942); S. Rep. No. 1196, 77th Cong., 2d Sess., 7 (1942); H. R. Rep, No. 1287, 79th Cong., 1st Sess., 6 (1945); S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946); Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 38 (1940); Tort Claims: Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 28, 44 (1942). Nothing in these sources, nor anything else called to our attention, indicates that the Tort Claims Act withdrew to any extent existing remedies for the breach of express or implied contracts. Others have read the statute and its legislative history to this effect. See 2 L. Jayson, Personal Injury: Handling Federal Tort Claims § 256 (1979); Gellhom & Schenck, Tort Actions Against the Federal Government, 47 Colum. L. Rev. 722, 729-730 (1947); Gottlieb, The Federal Tort Claims Act—A Statutory Interpretation, 35 Geo. Law J. 1, 45 (1946); Comment, The Federal Tort Claims Act, 42 Ill. L. Rev. 344, 360 (1947); Note, The Federal Tort Claims Act, 56 Yale L. J. 534, 547-548 (1947).

The Court of Claims relied on Stencel Aero Engineering Corp. v. United States, 431 U. S. 666 (1977), where it was held that the United States is not liable under the Tort Claims Act to indemnify a third party for damages paid to a member of the Armed Forces who was injured in military training. Recognizing that the Veterans’ Benefits Act provided compensation to injured servicemen, which we understood Congress intended to be the sole remedy for service-connected injuries, we declined to construe the Tort Claims Act to permit third-party indemnity suits that in effect would expose the Government to greater liability than that contemplated under the statutory compensation scheme. In Stencel, Congress had provided a remedy, which we thought to be exclusive. Here, however, § 2680 (c) denies a tort remedy for certain claims; and we fail to see how the Stencel holding that the existence of an exclusive statutory compensation remedy negates tort liability supports the conclusion that if the Tort Claims Act bars a tort remedy, neither is there a contractual remedy.

The absence of Government tort liability has not been thought to bar contractual remedies on implied-in-fact contracts, even in those cases also having elements of a tort. In Keifer & Keifer v. RFC, 306 U. S. 381 (1939), the Government argued that because a Government corporation could not be sued for negligence, neither could it be sued for breach of contract of bailment. The Court rejected the argument, holding that even if there was tort immunity, the waiver of immunity with respect to contract claims was not limited to “suits on contract, express or implied, not sounding in tort.” See also Aleutco Corp. v. United States, 244 F. 2d 674, 679 (CA3 1957); New England Helicopter Service, Inc. v. United States, 132 F. Supp. 938, 939 (RI 1955).

The United States does not now defend the reasoning of the Court of Claims that § 2680 (c) forecloses a remedy on an implied-in-fact contract of bailment. Tr. of Oral Arg. 37-38. It does support the judgment on a ground concededly not urged in the Court of Claims: that the contractual remedy should be rejected because individual customs officers are subject to tort liability and because 28 U. S. C. § 2006 provides that judgments against customs officers for negligent loss of goods, where seizure was made with probable cause, shall be paid by the United States. The existence of this private recourse, it is urged, counsels against recognizing a contractual remedy under the Tucker Act. We find the argument unpersuasive. There is no inconsistency between a contractual remedy against the Government and a tort remedy against customs officers. Cf. Keifer & Keifer, supra. Without more, neither the existence of a tort remedy nor the lack of one is relevant to determining whether there is an implied-in-fact contract of bailment upon which the United States is liable in the Court of Claims pursuant to its waiver of sovereign immunity contained in the Tucker Act.

Because the Court of Claims’ judgment rested heavily on a mistaken view of the legal significance of § 2680 (c) and because the Court of Claims should first address the question of an implied-in-fact contract without regard to that section, we vacate the judgment of the Court of Claims and remand the case to that court for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Blackmun,

dissenting.

I do not disagree with the legal principles pronounced by the Court in its per curiam opinion to the effect that 28 U. S. C. § 2680 (c) is not an obstacle to the awarding of judgment against the Government on an implied contract, ante, at 462; or that, in exempting from the Tort Claims Act those claims described in §2680 (c), Congress did not also intend to disturb other existing statutory remedies, ante, at 463; or that Stencel Aero Engineering Corp. v. United States, 431 U. S. 666 (1977), does not control this case, ante, at 464-466; or that the absence of governmental tort liability does not bar contractual remedies on implied-in-faet contracts, ante, at 465; or that there is no inconsistency between a contractual remedy against the Government and a tort remedy against customs officers, ante, at 466. But I dissent from the Court’s vacating the judgment of the Court of Claims and its remanding the case to that court for further proceedings.

I dissent because I am persuaded that an implied-in-fact contract is not to be found on the record in this case, and because I believe the remand is, or should be, a useless exercise leading to an inevitable result.

It is clear that jurisdiction of the Court of Claims extends to contracts implied in fact but not to those implied in law, See United States v. Minnesota Mutual Investment Co., 271 U. S. 212, 217-218 (1926); Merritt v. United States, 267 U. S. 338, 341 (1925). Here, the Customs Service seized the goods and declared them forfeited for customs violations. There is no question as to the legality of that seizure. See One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 234 (1972). Indeed, petitioner has admitted that the customs declaration was improper. 217 Ct. Cl. 423, 425, 579 F. 2d 617, 618 (1978); App. 11a, 18a. The Government’s action, thus, was a claim of forfeiture and an assertion of ownership. There was no uninterrupted title in petitioner, recognized by the parties, as would constitute the basis of a contract implied in fact to return the goods. See Baltimore & Ohio R. Co. v. United States, 261 U. S. 592, 597 (1923). If the forfeiture is not upheld, the duty to return the goods is one implied, not in fact, but in law, and is so implied from the duty imposed upon the Customs Service by statute. See 28 U. S. C. § 2465. Any recovery for failure on the part of the Service to fulfill that duty would be founded in tort, or perhaps in equity, but not in contract.

It therefore seems to me inevitably to follow that there is no jurisdiction over this case in the Court of Claims. See Baltimore & Ohio R. Co. v. United States, supra; Russell Corp. v. United States, 210 Ct. Cl. 596, 609, 537 F. 2d 474, 482 (1976), cert. denied, 429 U. S. 1073 (1977). Any remedy for petitioner lies elsewhere. Accordingly, I would affirm the judgment of the Court of Claims, albeit on a different ground from the one advanced by that court.

       Petitioner also sought damages, no longer in issue, for loss of “face and good will.”

       As a second cause of action, petitioner alleged a capricious and arbitrary seizure, “unreasonable detainer” of property, and “deprivation without due process.” Petitioner does not challenge the dismissal of this cause of action.

       We proceed in the text on the assumption, but without deciding, that the Court of Claims was correct in holding that the loss alleged in this case was a claim arising from the detention of goods by a customs officer and hence within the exception carved out by §2680 (e). Petitioner disputes this holding, claiming that the section is limited to wrongful detentions and does not deal with losses and that the courts are divided on the interpretation of the section. A-Mark, Inc. v. United States Secret Service, 593 F. 2d 849 (CA9 1978), and Alliance Assurance Co. v. United States, 252 F. 2d 529 (CA2 1958), it is said, permit recovery under the Tort Claims Act for the loss of goods detained by customs officers; whereas this case, United States v. One (1) 1972 Wood, 19 Foot Custom

        Boat, FL844SAY, 501 F. 2d 1327 (CA5 1974), and S. Schonfeld Co. v. S. S. Akra Tenaron, 363 F. Supp. 1220 (SC 1973), construe §2680 (c) to except such losses from the Tort Claims Act.
      We need not resolve the conflict. If petitioner is correct in its interpretation, § 2680 (c) would itself present no barrier to either contractual or tort liability. Nor would the existence of a Tort Claims Act remedy in this case be preclusive of pre-existing contractual remedies under the Tucker Act, at least absent some reasonably clear evidence that Congress intended to foreclose contractual remedies in the circumstances obtaining here.

       When Congress first considered the exception in 1940, Judge Alexander Holtzoff, then a Special Assistant to the Attorney General, testified before the Senate Judiciary Subcommittee considering the bill. As the then Mr. Holtzoff described the intended effect of the various exemptions, certain of them, such as the loss or miscarriage of postal matter and certain intentional torts, were included because they related to activities for which, as a policy matter, the Government should be free from tort claims. Other exemptions, such as the assessment or collection of taxes or customs duties, the detention of goods by customs officers, and admiralty or maritime torts, were included because various other laws provided the machinery for recovery on these claims and “[t]here was no purpose in interfering with that machinery.” Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 38-39 (1940). The purpose was to avoid duplication; there was no indication that existing remedies, if’any, were withdrawn.

       The Tucker Act itself is only a jurisdictional statute, of course, an# does not create a substantive'right to money damages. United States v. Testan, 424 U. S. 392, 398 (1976). The enforceable claim in this case must arise from the alleged contract. Moreover, the Court of Claims’ jurisdiction with respect to contracts extends only to actual contracts, either express or implied in fact; it does not reach claims on contracts implied in law. Alabama v. United States, 282 U. S. 502, 507 (1931); Goodyear Tire & Rubber Co. v. United States, 276 U. S. 287, 292-293 (1928); United States v. Minnesota Mutual Investment Co., 271 U. S. 212, 217 (1926); Hill v. United States, 149 U. S. 593, 598 (1893).

       We indicate no view, one way or the other, as to whether an implied-in-fact contract could be found on the record in this case.


text:
    TAGUE v. LOUISIANA
    No. 79-5386.
    Decided January 21, 1980
   Per Curiam.

Petitioner was charged with armed robbery in violation of La. Rev. Stat. Ann. § 14:64 (West 1974). He was convicted by a jury and sentenced to 65 years at hard labor without benefit of parole. His conviction was affirmed by the Supreme Court of Louisiana in a brief per curiam opinion. 372 So. 2d 555, 556 (1979). On rehearing, a divided court reaffirmed petitioner’s conviction. Ibid. It rejected his contention that an inculpatory statement made to the arresting officer and introduced at trial had been obtained in violation of his rights under Miranda v. Arizona, 384 U. S. 436 (1966).

At the suppression hearing in the trial court, the arresting officer testified that he read petitioner his Miranda rights from a card, that he could not presently remember what those rights were, that he could not recall whether he asked petitioner whether he understood the rights as read to him, and that he “couldn’t say yes or no” whether he rendered any tests to determine whether petitioner was literate or otherwise capable of understanding his rights. 372 So. 2d, at 557.

A majority of the Supreme Court of Louisiana held that an arresting officer is not

“compelled to give an intelligence test to a person who has been advised of his rights to determine if he understands them. . . .
“Absent a clear and readily apparent lack thereof, it can be presumed that a person has capacity to understand, and the burden is on the one claiming a lack of capacity to show that lack. LSA — C. C. arts. 25 and 1782_” Id., at 557-558.

Justice Dennis in dissent wrote that

“[c]ontrary to the explicit requirements of the United States Supreme Court in Miranda v. Arizona, 384 U. S. 436, . . . the majority today creates a presumption that the defendant understood his constitutional rights and places the burden of proof upon the defendant, instead of the state, to demonstrate whether the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., at 558.

We agree. The majority’s error is readily apparent. Miranda v. Arizona clearly stated the principles that govern once the required warnings have been given.

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U. S. 478, 490, n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U. S., at 475.

Just last Term, in holding that a waiver of Miranda rights need not be explicit but may be inferred from the actions and words of a person interrogated, we firmly reiterated that

“[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great. . . .” North Carolina v. Butler, 441 U. S. 369, 373 (1979).

In this case no evidence at all was introduced to prove that petitioner knowingly and intelligently waived his rights before making the inculpatory statement. The statement was therefore inadmissible.

Accordingly, the motion for leave to proceed in forma pau-peris and the petition for a writ of certiorari are granted, the judgment is reversed, and the case is remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with this opinion.

So ordered.

The Chief Justice would set the case for oral argument.

Me. Justice Rehnquist dissents. He thinks that, under the circumstances described in the opinion of the Supreme Court of Louisiana, the judgment of that court was fully consistent with North Carolina v. Butler, 441 U. S. 369 (1979), and not inconsistent with any other decision of this Court.


author: Mr. Justice Powell Mr. Justice Rehnquist,

text:
    BOEING CO. v. VAN GEMERT et al.
    No. 78-1327.
    Argued December 3, 1979
    Decided February 19, 1980

      Powell, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, Stewart, White, Marshall, BlackmuN, and SteveNs, JJ., joined. RehNquist, J., filed a dissenting opinion, post, p. 482.

      S. Hazard Gillespie argued the cause for petitioner. With him on the briefs were Sheila T. McMeen and Bruce A. Baird.

      Norman Winer argued the cause for respondents and filed a brief for certain respondents. Stuart D. Wechsler, Samuel K. Rosen, and Samuel Weinstein filed a brief for other respondents.

        George J. Solleder, Jr.} Special Master, pro se} filed a brief as amicus curiae.

   Mr. Justice Powell

delivered the opinion of the Court.

The question presented in this class action is whether a proportionate share of the fees awarded to lawyers who represented the successful class may be assessed against the unclaimed portion of the fund created by a judgment.

I

In March 1966, The Boeing Co. called for the redemption of certain convertible debentures. Boeing announced the call through newspaper notices and mailings to investors who had registered their debentures. The notices, given in accordance with the indenture agreement, recited that each $100 amount of principal could be redeemed for $103.25 or converted into two shares of the company’s common stock. They set March 29 as the deadline for the exercise of conversion rights. Two shares of the company’s common stock on that date were worth $316.25. When the deadline expired, the holders of debentures with a face value of $1,544,300 had not answered the call. These investors were left with the right to redeem their debentures for slightly more than face value.

Van Gemert and several other nonconverting debenture holders brought a class action against Boeing in the United States District Court for the Southern District of New York. They claimed that Boeing had violated federal securities statutes as well as the law of New York by failing to give them reasonably adequate notice of the redemption. As damages, they sought the difference between the amount for which their debentures could be redeemed and the value of the shares into which the debentures could have been converted. The District Court dismissed the action on the ground that Boeing had given its debenture holders the notice required by the indenture agreement. The Court of Appeals for the Second Circuit reversed and remanded. It held that, under the New York law of contracts, the indenture agreement contained an implied obligation to give debenture holders reasonable notice of a redemption. The court concluded that the notice actually given was inadequate. 520 F. 2d 1373, cert. denied, 423 U. S. 947 (1975).

On remand, the District Court awarded as damages the difference between the redemption price of the outstanding debentures and the price at which two shares of Boeing’s common stock traded on the last day for exercising conversion rights. The court, however, refused to assess prejudgment interest against Boeing. There followed a second appeal. The class claimed that the stock should have been valued as of a later date and that Boeing was liable for prejudgment interest. Class members who had filed individual claims also contended that they were entitled to receive pro rata shares of any unclaimed damages. At the least, they argued, they should receive enough of the unclaimed money to pay their legal expenses.

The Court of Appeals found the class entitled to prejudgment interest on the award, but it approved the valuation date. The court also concluded that class members who proved their individual claims should not share in the unclaimed portion of the judgment. Allowing these class members to receive a proportionate part of the unclaimed money, the court held, would create the sort of “fluid class” recovery rejected in Eisen v. Carlisle & Jacquelin, 479 F. 2d 1005 (CA2 1973), vacated and remanded on other grounds, 417 U. S. 156 (1974). Such a recovery would expropriate funds belonging to class members who had not asserted their claims and give a windfall to those who had claimed. Finally, the court decided that claiming class members could not use the unclaimed portion of the judgment to defray their legal expenses. Since Boeing could have a right to money that never was claimed, the court thought that awarding attorney’s fees from the remaining funds might shift fees to the losing party in violation of the American rule reaffirmed in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). 553 F. 2d 812 (1977).

On the second remand, the District Court entered the judgment now at issue. The court first established the amount of Boeing’s liability to the class as a whole. It provided that respondents, “in behalf of all members of the plaintiff class, . . . shall recover as their damages . . . the principal sum of $3,289,359 together with [prejudgment] interest. . . .” App. 40a. The court then fixed the amount that each member of the class could recover on a principal amount of $100 in debentures. Each individual recovery was to carry its proportionate share of the total amount allowed for attorney’s fees, expenses, and disbursements. That share, the court declared, “shall bear the same ratio to all such fees, expenses and disbursements as such class member’s recovery shall bear to the total recovery” awarded the class. Id., at 40ar41a. Finally, the court ordered Boeing to deposit the amount of the judgment into escrow at a commercial bank, and it appointed a Special Master to administer the judgment and pass on the validity of individual claims. The court retained jurisdiction pending implementation of its judgment.

Boeing appealed only one provision of the judgment. It claimed that attorney’s fees could not be awarded from the unclaimed portion of the judgment fund for at least two reasons. First, the equitable doctrine that allows the assessment of attorney’s fees against a common fund created by the lawyers’ efforts was inapposite because the money in the judgment fund would not benefit those class members who failed to claim it. Second, because Boeing had a colorable claim for the return of the unclaimed money, awarding attorney’s fees from those funds might violate the American rule against shifting fees to the losing party. Therefore, Boeing contended, the District Court should award attorney’s fees from only the portion of the fund actually claimed by class members. A panel of the Court of Appeals agreed with Boeing, 573 F. 2d 733 (1978), but the court en banc affirmed the District Court’s judgment, 590 F. 2d 433 (1978).

The Court of Appeals en banc found that each class member had a “present vested interest in the class recovery” and that each could collect his share of the judgment upon request. Thus, the court held, absentee class members had received a benefit within the meaning of the common-fund doctrine. Id., at 439. The court also found its holding consistent with the American rule. It noted that lawyers for the class would receive their fees “from the amount for which Boeing has already been held liable. There is no 'surcharge’ on the defeated litigant.” Id., at 441-442. We granted certiorari, 441 U. S. 942 (1979), and we now affirm.

II

Since the decisions in Trustees v. Greenough, 105 U. S. 527 (1882), and Central Railroad & Banking Co. v. Pettus, 113 U. S. 116 (1885), this Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole. See Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970); Sprague v. Ticonic National Bank, 307 U. S. 161 (1939); cf. Hall v. Cole, 412 U. S. 1 (1973). The common-fund doctrine reflects the traditional practice in courts of equity, Trustees v. Green-ough, supra, at 532-537, and it stands as a well-recognized exception to the general principle that requires every litigant to bear his own attorney’s fees, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S., at 257-258. The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense. See, e. g., Mills v. Electric Auto-Lite Co., 396 U. S., at 392. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately, among those benefited by the suit. See id., at 394.

In Alyeska Pipeline Service Co. v. Wilderness Society, supra, we noted the features that distinguished our common-fund cases from cases where the shifting of fees was inappropriate. First, the classes of persons benefited by the lawsuits “were small in number and easily identifiable.” 421 U. S., at 265, n. 39. Second, “[t]he benefits could be traced with some accuracy. . . .” Ibid. Finally, “there was reason for confidence that the costs [of litigation] could indeed be shifted with some exactitude to those benefiting.” Ibid. Those characteristics are not present where litigants simply vindicate a general social grievance. Id., at 263-267, and n. 39. On the other hand, the criteria are satisfied when each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf. Once the class representatives have established the defendant’s liability and the total amount of damages, members of the class can obtain their share of the recovery simply by proving their individual claims against the judgment fund. This benefit devolves with certainty upon the identifiable persons whom the court has certified as members of the class. Although the full value of the benefit to each absentee member cannot be determined until he presents his claim, a fee awarded against the entire judgment fund will shift the costs of litigation to each absentee in the exact proportion that the value of his claim bears to the total recovery. See generally Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 Harv. L. Rev. 849, 916-922 (1975).

In this case, the named respondents have recovered a determinate fund for the benefit of every member of the class whom they represent. Boeing did not appeal the judgment awarding the class a sum certain. Nor does Boeing contend that any class member was uninjured by the company’s failure adequately to inform him of his conversion rights. Thus, the damage to each class member is simply the difference between the redemption price of his debentures and the value of the common stock into which they could have been converted. To claim their logically ascertainable shares of the judgment fund, absentee class members need prove only their membership in the injured class. Their right to share the harvest of the lawsuit upon proof of their identity, whether or not they exercise it, is a benefit in the fund created by the efforts of the class representatives and their counsel. Unless absentees contribute to the payment of attorney’s fees incurred on their behalves, they will pay nothing for the creation of the fund and their representatives may bear additional costs. The judgment entered by the District Court and affirmed by the Court of Appeals rectifies this inequity by requiring every member of the class to share attorney’s fees to the same extent that he can share the recovery. Since the benefits of the class recovery have been “traced with some accuracy” and the costs of recovery have been “shifted with some exactitude to those benefiting,” Alyeska Pipeline Service Co. v. Wilderness Society, supra, at 265, n. 39, we conclude that the attorney’s fee award in this case is a proper application of the common-fund doctrine.

Ill

The common-fund doctrine, as applied in this case, is entirely consistent with the American rule against taxing the losing party with the victor’s attorney’s fees. See Alyeska Pipeline Service Co. v. Wilderness Society, supra, at 247. The District Court’s judgment assesses attorney’s fees against a fund awarded to the prevailing class. Since there was no appeal from the judgment that quantified Boeing’s liability, Boeing presently has no interest in any part of the fund. The members of the class, whether or not they assert their rights, are at least the equitable owners of their respective shares in the recovery. Any right that Boeing may establish to the return of money eventually unclaimed is contingent on the failure of absentee class members to exercise their present rights of possession. Although Boeing itself cannot be obliged to pay fees awarded to the class lawyers, its latent claim against unclaimed money in the judgment fund may not defeat each class member’s equitable obligation to share the expenses of litigation.

The judgment of the Court of Appeals is

Affirmed.

Mr. Justice Rehnquist,

dissenting.

In disposing of this case on the merits, the Court gives short shrift to the question of appealability, a threshold issue by no means free from doubt even under the most generous view of our decided cases. I have concluded from these cases, viewed in light of the longstanding policy of the federal judicial system against piecemeal appeals, that the judgment now before us lacks the finality required by 28 U. S. C. § 1291, and I would therefore remand this case to the Court of Appeals with instructions to dismiss Boeing’s appeal. Exhibit “A” of the shortsightedness of the Court’s sloughing off the issue of appealability as it does is the fact that the parties are obliged to refer to the present case not merely as "Van Gemert,” but as “Van Gemert III.” This case, which began in March 1966, has been appealed to the Court of Appeals for the Second Circuit three times, and now, after 14 years of litigation, this Court affirms the third decision of the Court of Appeals.

There is no doubt as to the appealability of the first of the three decisions of the District Court, since it dismissed respondents’ complaint with prejudice. The second appeal was also by respondents from a determination by the District Court that respondents were not entitled to any prejudgment interest; this decision was also reversed by the Court of Appeals. Following this second remand, the District Court entered a “Judgment and Order” stating that Boeing was liable to respondent class in the amount of $3,289,359 plus interest, ordering Boeing to pay this amount into escrow, and indicating that respondents’ attorneys could recover their fees “out of said total amount of this judgment.” At this point, Boeing appealed for the first time, asserting that respondents’ attorneys should collect their fees only out of that portion of the fund actually claimed. As noted by the Court, the Court of Appeals en banc affirmed this aspect of the District Court’s order.

The novelty of the question posed by Boeing is attributable in large part to the historic prevalence of the “American rule,” which generally prevents a court from requiring the losing party to pay the prevailing party’s attorney’s fees. In recent years, however, the proliferation of class actions and the enactment of various statutes modifying the American rule have multiplied the opportunities for recovering attorney’s fees and have simultaneously spawned a great deal of litigation over assessment of those fees. These developments lend added significance to the procedural implications of our decisions in this area.

In the typical American-rule case, the federal judicial system, by statute and rule, has generally made a final order a prerequisite to appellate review. A judgment is not considered final, and therefore appealable, until the district court has completed all but the most ministerial acts. Arguably, litigation necessitating an award of attorney's fees should be treated no differently. It would be quite reasonable, I believe, to postpone appeal in such cases until the District Court had entered judgment not only on liability and damages, but also on whether and in what amount attorney’s fees will be assessed. Cf. Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976) (dismissing appeal from judgment of liability in Title VII action under Civil Rights Act of 1964 where requests for injunction, damages, and attorney’s fees remained pending in the District Court).

For better or for worse, the little precedent that exists in this area has tended to deviate from such a sensible approach. This deviation has been particularly noticeable when the right to attorney’s fees has been based on the existence of a “common fund” such as that discussed in the opinion of the Court. Beginning with Trustees v. Greenough, 105 U. S. 527 (1882), the Court has evidenced a willingness to treat the division of the common fund as a separate piece of litigation for purposes of appeal. In Greenough, for example, this Court entertained an appeal from an order allowing a successful plaintiff bondholder to recover attorney’s fees even though the original action remained pending in the trial court for purposes of administration. The Court stated that the award of fees, “though incidental to the [original] cause,” was sufficiently “collateral,” “distinct,” and “independent,” to be appealable in its own right. Id., at 531.

From Greenough it was an analytically short, though temporally long, step .to the decision of the Court of Appeals for the Seventh Circuit in Swanson v. American Consumer Industries, Inc., 517 F. 2d 555 (1975). In that shareholders’ derivative suit, the District Court entered judgment in favor of plaintiffs and awarded damages. Seven months later it granted attorney’s fees to prevailing counsel under an “extension” of Greenough. 517 F. 2d, at 560. Two notices of appeal were filed from this latter order, one on behalf of plaintiffs challenging the amount of damages and the other on behalf of plaintiffs and their attorneys challenging the amount of attorney’s fees. The Court of Appeals dismissed the appeal on the question of damages as untimely, reasoning that the District Court’s determination of damages was final, and therefore appealable, upon entry of the first order.

Greenough and Swanson represent two sides of the same coin. If an attorney’s attempt to secure fees from the common fund is “collateral” enough to support an independent appeal despite the continued pendency of the main litigation, then the judgment establishing the fact and amount of the defendant’s liability in the main litigation should also support a separate appeal despite the continued pendency of a dispute over division of the fund between the beneficiaries and their attorneys.

Implicit in this bifurcated approach to appealability in common-fund cases is a strict bifurcation of the issues that can be litigated in either appeal. Thus, this Court would not have permitted the trustees in Greenough to contest in their appeal the merits of the dispute that generated the common fund. Nor, I venture, would the Court of Appeals for the Seventh Circuit have allowed a timely appeal on the issue of damages to challenge the amount of attorney’s fees assessed, an issue that was the subject of a later, separate appeal. In each case, appellant would be powerless to reach backward or forward from the “collateral” proceeding to the “merits” of the lawsuit.

But this is exactly what the Court permits Boeing to do in this case. Assuming, as seems likely, that the Greenough/ Swanson model of bifurcated appealability will prevail, I have no doubt that Boeing could have appealed, at this stage of the proceedings, from the judgment that it was liable to the plaintiff class in the amount of $3,289,359 plus interest. But as the Court concedes, indeed stresses, Boeing has not challenged either the fact of liability or the amount. See ante, at 479-480, n. 5. Such an appeal must have appeared futile in light of Van Gemert I, 520 F. 2d 1373 (1975), which established liability, and Van Gemert II, 553 F. 2d 812 (1977), which established the precise amount of damages payable to each member of the class. Instead, Boeing relies on the “finality” of the District Court’s judgment on the merits, the Swanson side of the coin, to prosecute an appeal on the division of the common fund, the Greenough side of the coin. As noted above, such crisscrossing of contentions is inconsistent with a bifurcated approach to appellate litigation in common-fund cases.

Even if Boeing is to be allowed to appeal under the “collateral order” rubric in this case, the order from which it appealed was not final even under that doctrine. Greenough itself noted that the trustees brought their appeal from “a final determination of the particular matter arising upon the complainant’s petition for allowances. . . .” 105 U. S., at 531 (emphasis added). Similarly, Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), which formalized the “collateral order” doctrine presaged in Greenough, requires that the order appealed from be the “final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.” 337 U. S., at 546-547 (emphasis added). In this case, however, that portion of the litigation involving the attorney’s fees is still in its most nascent phase. We do not know, for example, when these fees are going, to be assessed, how they will be calculated, or what will become of that portion of the fund that is neither claimed nor paid out in fees.

Nowhere does this lack of finality manifest itself more than in the Court’s holding that Boeing has standing to litigate over the division of the spoils even though it may not have any continuing interest whatsoever in the money held in escrow. In allowing Boeing to base its appeal on a “colorable claim for the return of ![any] excess,” ante, at 481, n. 7, the Court comes dangerously close to assuming in a single phrase that Boeing has standing. At best this analysis is unnecessary, since final settlement of the conflicting claims to the fund would establish Boeing’s standing once and for all. At worst it represents a dangerous dilution of the standing requirement. In any event, the anticipatory nature of the analysis necessary to reach the merits of Boeing’s appeal buttresses the notion that the Court is using a dubious technique to gloss over a lack of finality.

The procedural implications of our decision today will, I fear, have a more far-reaching effect than the decision on the propriety of the application of the common-fund rule for allowing fees. Were I an attorney representing a party in common-fund litigation at a juncture similar to that encountered by Boeing prior to its appeal, I would be quite confused about the propriety of an immediate appeal, either on the merits of the main cause of action or on the details of an impending assessment of fees. Fearful that, by waiting for a “final order” in the strict sense, I might forfeit my right to appeal certain aspects of the litigation, cf. Swanson v. American Consumer Industries, Inc., I probably would err in favor of filing an immediate appeal on whatever aspects of the case were bothersome at that time. From the standpoint of the federal appellate courts, such uncertainty can only result in numerous interlocutory, precautionary appeals.

In sum, I believe that the District Court’s order on the division of the “common fund” lacks the finality necessary to support Boeing’s appeal, and would remand this matter to the Court of Appeals with instructions to dismiss the appeal. I therefore dissent.

       The relevant paragraph of the District Court’s judgment declares in full:
      “ORDERED, ADJUDGED AND DECREED that plaintiffs in behalf of all members of the plaintiff class, which consists of all holders on March 29, 1966 of 4%% Convertible Subordinated Debentures of the Boeing Company who failed to exercise their conversion right before it terminated on March 29, 1966, shall recover as their damages herein from the defendants the principal sum of $3,289,359 together with interest thereon at the legal rates fixed by the State of New York, N. Y. C. P. L. R. § 5001 (a) from March 9, 1966 to the date of this judgment, with costs to be taxed. . . .” App. 40a.

       The class lawyers have requested fees totaling about $2 million. 573 F. 2d 733, 735, n. 3 (1978) (panel opinion).

       Interest on the principal sum of $3,289,359 from the conversion deadline to the date of judgment amounted to $2,459,647, bringing the judgment to $5,749,006. With income earned on investments and other additions, the fund now totals over $7 million. Brief for Special Master as Amicus Curiae 4^6.

       The District Court gave the Special Master a broad mandate to “direct the parties in the necessary ministerial steps to effectuate the Judgment, receive all proofs of claim to participate in the Fund established by the Judgment, pass on the validity of same, direct the giving of notices to interested persons of hearings on disputed claims, conduct the necessary hearings, submit reports thereon and- in general supervise the administration of the Judgment and decide all disputed questions of law and fact connected therewith subject to confirmation by the Court. . . .” App. 42a.
      In the year following his appointment, the Special Master mailed notices to debenture holders who could be identified and published notices in two national newspapers. By July 15, 1978, the Special Master had received claims accounting for $290,000 worth of the $1,544,300 in unconverted debentures. Brief for Special Master as Amicus Curiae 11. The District Court then extended the time for filing proofs of claims, and the Master renewed his efforts to locate holders of the remaining debentures. Further research in files kept by the trustee under the indenture agreement revealed the identity of additional debenture holders. A professional search firm endeavored to trace holders who had relocated. Banks and brokerage houses also were furnished' with information that might help them to locate clients who had invested in the debentures. As of July 18, 1979, shortly before he filed his brief with this Court, the Master had received claims accounting for $706,600 worth of debentures or about 47% of the unconverted securities. Id., at 14.

       Boeing contends that the judgment in this case was simply a procedural device ordering Boeing to pay into escrow its maximum potential liability to the class. The judgment will not be final, Boeing argues, until absentee class members have presented their individual claims. Thus, Boeing concludes, the judgment fund confers no benefit on class members who fail to claim against it. Brief for Petitioner 25-26, and n. *.
      We think that Boeing misreads the judgment. The District Court explicitly ordered that “plaintiffs in behalf of all members of the plaintiff class . . . shall recover as their damages herein from the defendants the principal sum of $3,289,359 together with interest. . . .” See n. 1, supra. Nothing in the court’s order made Boeing’s liability for this amount contingent upon the presentation of individual claims. Thus, we need not decide whether a class-action judgment that simply requires the defendant to give security against all potential claims would support a recovery of attorney’s fees under the common-fund doctrine.
      We also think that Boeing’s arguments come too late. Although the District Court did not fix the amount of attorney’s fees to be assessed against absentee class members, its judgment terminated the litigation between Boeing and the class concerning the extent of Boeing’s liability. See Swanson v. American Consumer Industries, Inc., 517 F. 2d 555, 559— 561 (CA7 1975). This is not a case, like Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976), where a prayer for attorney’s fees against an opposing party remains unanswered. See Richerson v. Jones, 551 F. 2d 918, 921-922 (CA3 1977). Thus, the judgment awarding the class a fixed recovery was final and appealable. Since Boeing did not appeal it, we cannot now consider whether the judgment was in error.

       Since an award of attorney’s fees under the common-fund doctrine simply relieves claiming class members of costs incurred for the benefit of others, we see no merit in Boeing’s contention that the award amounts to a “fluid class” recovery. See Tr. of Oral Arg. 20. Here, as in Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 172, n. 10 (1974), we express no opinion on the validity of judgments permitting such recoveries.

       Although we recognize that this 14-year-old case has had a fractured career in the courts, we do not agree with Mr. Justice RehNQUist’s dissenting view that the judgment before us lacks finality. Post, at 482. The District Court’s judgment first ordered Boeing to pay a specified sum to the entire class and then assessed undetermined attorney’s fees against the entire fund created by the judgment. The judgment on the merits stripped Boeing of any present interest in the fund. Thus, Boeing had no cognizable interest in further litigation between the class and its lawyers over the amount of the fees ultimately awarded from money belonging to the class. But Boeing did have an interest, arising from its colorable claim for the return of excess money, in whether attorney’s fees could be assessed against the entire fund rather than against the portion actually claimed. Since the District Court’s order assessed attorney’s fees against the entire fund, it was a final judgment on the only issue in which Boeing still had an interest. In the peculiar circumstances of this case, Boeing could secure review of the allocation of fees only by appealing from this adverse judgment.

       The Court of Appeals did not consider the ultimate disposition of whatever money may remain in the fund after the District Court enforces a deadline for the presentation of individual claims. 590 F. 2d 433, 440, n. 17 (1978). We likewise express no opinion on that question.

       See, e. g., 5 U. S. C. § 552 (a) (4) (E) (permitting award of attorney’s fees in actions brought under Freedom of Information Act); 15 U. S. C. § 1691e (d) (suits under Equal Credit Opportunity Act); 42 U. S. C. § 2000e-5 (k) (Title VII suits under Civil Rights Act of 1964); 42 U. S. C. § 1988 (civil-rights suits).

       See also Sprague v. Ticonic National Bank, 307 U. S. 161, 169 (1939) (claim for fees out of common fund “sufficiently different” from parent claim to support separate appeal); Preston v. United States, 284 F. 2d 514 (CA9 1960) (attorney’s appeal from District Court’s refusal to award fees on common-fund theory); Angoff v. Goldfine, 270 F. 2d 185 (CA1 1959) (attorney’s appeal from District Court’s refusal to grant him fees out of settlement fund).

       Outside the common-fund context, the consensus in the lower courts over the permissibility of bifurcated appeals dissolves. Two Courts of Appeals, including the Seventh Circuit, áppear to have carried the Greenough/Swanson approach over into cases where one party recovers attorney’s fees directly from an opposing party. In Hidell v. International Diversified Investments, 520 F. 2d 529 (CA7 1975), for example/appellee had brought suit under the securities laws. The District Court entered a judgment granting appellee an injunction, damages, and “reasonable” attorney’s fees. The Court of Appeals, citing Swanson, allowed the defendant to appeal the merits of the dispute prior to the actual determination of those fees.
      In Lowe v. Pate Stevedoring Co., 595 F. 2d 256, 257 (CA5 1979), the plaintiff had prevailed on the merits of an unfair-representation suit against his union. The District Court granted plaintiff’s attorney fees as the result of the union’s “bad faith,” but denied plaintiff’s attorney a lien against the union to secure his fee. The Court of Appeals, relying on
        Swanson, Preston v. United States, supra, and Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), allowed the attorney to prosecute his appeal even though his client’s prayer for reinstatement remained pending in the District Court. To the extent that the Fifth Circuit treats such an appeal as severable from the main cause of action, it might also treat an appeal from the main litigation as severable from the attorney’s-fees proceeding.
      Two other Courts of Appeals have rejected the bifurcated model of appealability in non-common-fund cases. In Richerson v. Jones, 551 F. 2d 918, 922 (1977), the Third Circuit confronted an appeal by the United States from a judgment of liability in a discrimination suit. The District Court’s order had awarded plaintiff promotion, backpay, and interest, but had not yet ruled on plaintiff's request for attorney’s fees. In holding that the United States had not appealed from a final order, the Court of Appeals relied upon Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976), and distinguished Swanson as a case where plaintiff was not seeking to collect fees from his adversary.
      Employing similar analysis, the Second Circuit twice has held that, where the obligation to pay an opposing party’s attorney’s fees arises out of an agreement that is also the subject of the original litigation, the attorney’s-fees issue is not sufficiently collateral to allow appeal from a judgment on the merits prior to a determination of the attorney’s fees. See Aetna Casualty & Surety Co. v. Giesow, 412 F. 2d 468 (1969) (suit for breach of subordination agreement); Union Tank Car Co. v. Isbrandtsen, 416 F. 2d 96 (1969) (suit to enforce settlement agreement). Judge Friendly has attempted to reconcile Giesow with the common-fund cases. See Cinerama, Inc. v. Sweet Music, S. A., 482 F. 2d 66, 70, n. 2 (CA2 1973). See also Union Tank Car Co. v. Isbrandtsen, supra, at 97.
      This overview is offered only to illustrate the complexity of this issue. Perhaps all these cases-can be reconciled in some principled manner; if not, it is only a matter of time before this Court will have to try its hand at an issue that obviously has been perplexing other federal courts. In the meantime, I believe that we should tread quite carefully in this area.

       Boeing’s only interest in the funds now held in escrow is its assertion that the unclaimed portion of the judgment eventually will revert to it. But respondents have argued with some force that the unclaimed funds will eventually escheat to the State of New York. See N. Y. Aband. Prop. Law § 1200 (McKinney 1944). In fact, the Attorney General of New York already has presented such a claim to the District Court. See Brief 'for Respondents filed by Stuart D. Wechsler 23. If the Attorney General and respondents are correct, then Boeing has no more standing to press its appeal than would a losing defendant have standing to contest the division of an award between plaintiff and his attorney pursuant to a contingent-fee arrangement.
      Although respondents have not challenged Boeing’s standing, we are obligated to consider the issue sua sponte, if necessary. See, e. g., Juidice v. Vail, 430 U. S. 327, 331 (1977).

       The potential for confusion is even greater outside the context of common-fund litigation. See n. 3, supra.