source: Caselaw Access Project

author: Mr. Chief Justice Burger, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Marshall,

license: Public Domain

text:
    UNITED AIR LINES, INC. v. McMANN
    No. 76-906.
    Argued October 4, 1977
    Decided December 12, 1977

      Arnold T. Aikens argued the cause for petitioner. With him on the briefs were Kenneth A. Knutson, Earl G. Dolan, and Philip J. Hogan.

      Francis G. McBride argued the cause and filed a brief for respondent.

        Morgan D. Hodgson, Lawrence B. Kraus, and Richard O’Brecht filed a brief for the- Chamber of Commerce of the United States of America as amicus curiae urging reversal.

        Cyril F. Brickfield, Jonathan A. Weiss, and Robert B. GiMan filed a brief for the National Retired Teachers Assn. et al. as amici curiae urging affirmance.

   Mr. Chief Justice Burger,

delivered the opinion of the Court.

The question presented in this case is whether, under the Age Discrimination in Employment Act of 1967, retirement of an employee over his objection and prior to reaching age 65 is permissible under the provisions of a bona fide retirement plan established by the employer in 1941 and joined by the employee in 1964. We granted certiorari to resolve a conflict between the holdings of the Fifth Circuit in Brennan v. Taft Broadcasting Co., 500 F. 2d 212 (1974), and the Fourth Circuit now before us. See Zinger v. Blanchette, 549 F. 2d 901 (CA3 1977), cert. pending, No. 76-1375.

I

The operative facts were stipulated by the parties in the District Court and are not controverted here. McMann joined United Air Lines, Inc., in 1944, and continued as an employee until his retirement at age 60 in 1973. Over the years he held various positions with United and at retirement held that of technical specialist-aircraft systems. At the time McMann was first employed, United maintained a formal retirement income plan it had inaugurated in 1941, in which McMann was eligible to participate, but was not compelled to join. He voluntarily joined the plan in January 1964. The application form McMann signed showed the normal retirement age for participants in his category as 60 years.

McMann reached his 60th birthday on January 23, 1973, and was retired on February 1, 1973, over his objection. He then filed a notice of intent to sue United for violation of the Act pursuant to 29 U. S. C. § 626 (d). Although he received an opinion from the Department of Labor that United's plan was bona fide and did not appear to be a subterfuge to evade the purposes of the Act, he brought this suit.

McMann’s suit in the District Court seeking injunctive relief, reinstatement, and backpay alleged his forced retirement was solely because of his age and was unlawful under the Act. United's response was that McMann was retired in compliance with the provisions of a bona fide retirement plan which he had voluntarily joined. On facts as stipulated, the District Court granted United’s motion for summary judgment.

In the Court of Appeals it was conceded the plan was bona fide “in the sense that it exists and pays benefits.” But McMann, supported by a brief amicus curiae filed in that court by the Secretary of Labor, contended the enforcement of the age-60 retirement provision, even under a bona fide plan instituted in good faith in 1941, was a subterfuge to evade the Act.

The Court of Appeals agreed, holding that a pre-age-65 retirement falls within the meaning of “subterfuge” unless the employer can show that the “early retirement provision . . . ha[s] some economic or business purpose other than arbitrary age discrimination.” 542 F. 2d 217, 221 (1976). The Court of Appeals remanded the case to the District Court to allow United an opportunity to show an economic or business purpose and United sought review here.

We reverse.

II

Section 2 (b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, recites that its purpose is

“to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. § 621 (b).

Section 4 (a)(1) of the Act, 81 Stat. 603, makes it unlawful for an employer

“to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age . . . .” 29 U. S. C. § 623 (a)(1).

The Act covers individuals between ages 40 and 65, 29 U. S. C. § 631, but does not prohibit all forced retirements prior to age 65; some are permitted under §4 (f)(2), 81 Stat. 603, which provides:

“It shall not be unlawful for an employer ... or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this [Act], except that no such employee benefit plan shall excuse the failure to hire any individual 29 U. S. C. § 623 (f)(2).

See infra, at 198-202.

McMann argues the term “normal retirement age” is not defined in the plan other than in a provision that “A Participant’s Normal Retirement Date is the first day of the month following his 60th birthday.” From this he contends normal retirement age does not mean mandatory or compelled retirement at age 60, and United therefore did not retire him “to observe the terms” of the plan as required by §4 (f)(2). As to this claim, however, we accept the analysis of the plan by the Court of Appeals for the Fourth Circuit:

“While the meaning of the word 'normal’ in this context is not free from doubt, counsel agreed in oral argument on the manner in which the plan is operated in practice. The employee has no discretion whether to continue beyond the 'normal’ retirement age. United legally may retain employees such as McMann past age 60, but has never done so: its policy has been to retire all employees at the 'normal’ age. Given these facts, we conclude that for purposes of this decision, the plan should be regarded as one requiring retirement at age 60 rather than one permitting it at the option of the employer.” 542 F. 2d, at 219. (Emphasis supplied.)

McMann had filed a grievance challenging his retirement since, as a former pilot, he held a position on the pilots’ seniority roster. In that arbitration proceeding he urged that “normal” means “average” and so long as a participant is in good health and fit for duty he should be retained past age 60. The ruling in the arbitration proceeding was that “ ' [n] ormal’ means regular or standard, not average, not only as a matter of linguistics but also in the general context of retirement and pension plans and the settled practice at United.” It was also ruled that the involuntary retirement of McMann “was taken in accordance with an established practice uniformly applied to all members of the bargaining unit.”

Though the District Court made no separate finding as to the meaning of “normal” in this context, it had before it the definition ascribed in the arbitration proceeding and that award was incorporated by reference in the court’s findings and conclusions. In light of the facts stipulated by the parties and found by the District Court, we also accept the Court of Appeals’ view as to the meaning of “normal.”

In Brennan v. Taft Broadcasting Co., 500 F. 2d, at 215, the Fifth Circuit held that establishment of a bona fide retirement plan long before enactment of the Act, “eliminated] any notion that it was adopted as a subterfuge for evasion.” In rejecting the Taft reasoning, the Fourth Circuit emphasized that it distinguished between the Act and the -purposes of the Act. The distinction relied on is untenable because the Act is the vehicle by which its purposes are expressed and carried out; it is difficult to conceive of a subterfuge to evade the one which does not also evade the other.

McMann argues that § 4 (f) (2) was not intended to authorize involuntary retirement before age 65, but was only intended to make it economically feasible for employers to hire older employees by permitting the employers to give such older employees lesser retirement and other benefits than provided for younger employees. We are persuaded that the language of § 4 (f) (2) was not intended to have such a limited effect.

In Zinger v. Blanchette, 549 F. 2d 901 (1977), the Third Circuit had before it both the Taft and McMann decisions. It accepted McMann’s distinction between the Act and its purposes, which, in this setting, we do not, but nevertheless concluded:

“The primary purpose of the Act is to prevent age discrimination in hiring and discharging workers. There is, however, a clear, measurable difference between outright discharge and retirement, a distinction that cannot be overlooked in analyzing the Act. While discharge without compensation is obviously undesirable, retirement on an adequate pension is generally regarded with favor. A careful examination of the legislative history demonstrates that, while cognizant of the disruptive effect retirement may have on individuals, Congress continued to regard retirement plans favorably and chose therefore to legislate only with respect to discharge.” 549 F. 2d, at 905. (Emphasis supplied; footnote omitted.)

The dissent relies heavily upon the legislative history, which by traditional canons of interpretation is irrevelant to an unambiguous statute. However, in view of the recourse to the legislative history we turn to that aspect to demonstrate the absence of any indication of congressional intent to undermine the countless bona fide retirement plans existing in 1967 when the Act was passed. Such a pervasive impact on bona fide existing plans should not be read into the Act without a clear, unambiguous expression in the statute.

When the Senate Subcommittee was considering the bill, the then Secretary of Labor, Willard Wirtz, was asked what effect the Act would have on existing pension plans. His response was:

“It would be my judgment . . . that the effect of the provision in 4 (f) (2) [of the original bill] ... is to protect the application of almost all plans which I know anything about. ... It is intended to protect retirement plans.” Hearings on S. 830 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 53 (1967) (hereafter Senate Hearings) .

When the present language of § 4 (f) (2) was later proposed by amendments, Mr. Wirtz again commented that established pension plans would be protected. Hearings on H. R. 4221 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess., 40 (1967).

Senator Javits' concern with the administration version of §4 (f)(2), expressed in 1967 when the legislation was being debated, was that it did not appear to give employers flexibility to hire older employees without incurring extraordinary expenses because of their inclusion in existing retirement plans. His concern was not, as inferred by the dissent, that involuntary retirement programs would still be allowed. He said,

“The administration bill, which permits involuntary separation under bona fide retirement plans meets only part of the problem. It does not provide any flexibility in the amount of pension benefits payable to older workers depending on their age when hired, and thus may actually encourage employers, faced with the necessity of paying greatly increased premiums, to look for excuses not to hire older workers when they might have hired them under a law granting them a degree of flexibility with respect to such matters.
“That flexibility is what we recommend.
“We also recommend that the age discrimination law should not be used as the place to fight the pension battle but that we ought to subordinate the importance of adequate pension benefits for older workers in favor of the employment of such older workers and not make the equal treatment under pension plans a condition of that employment.” Senate Hearings 27.

In keeping with this objective Senator Javits proposed the amendment, which was incorporated into the 1967 Act, calling for “a fairly broad exemption ... for bona fide retirement and seniority systems which will facilitate hiring rather than deter it and make it possible for older workers to be employed without the necessity of disrupting those systems.” Id., at 28.

The true intent behind § 4 (f) (2) was not lost on the representatives of organized labor; they viewed it as protecting an employer’s right to require pre-65 retirement pursuant to a bona fide retirement plan and objected to it on that basis. The legislative director for the AFD-CIO testified:

“We likewise do not see any reason why the legislation should, as is provided in section 4(f)(2) of the Administration bill, permit involuntary retirement of employees under 65. . . . Involuntary retirement could be forced, regardless of the age of the employee, subject only to the limitation that the retirement policy or system in effect may not be merely a subterfuge to evade the Act.” Senate Hearings 96.

In order to protect workers against involuntary retirement, the AFL-CIO suggested an “Amendment to Eliminate Provision Permitting Involuntary Retirement From the Age Discrimination in Employment Act, and to Substitute Therefor Provision Safeguarding Bona Fide Seniority or Merit Systems,” which would have deleted any reference to retirement plans in the exception. Id., at 100. This amendment was rejected.

But, as noted in Zinger, 549 F. 2d, at 907, the exemption of benefit plans remained in the bill as enacted notwithstanding labor’s objection, and the labor-proposed exemption for seniority systems was added. There is no basis to view the final version of § 4 (f) (2) as an acceptance of labor’s request that the benefit-plan provision be deleted; the plain language of the statute shows it is still there, albeit in different terms.

Also added to the section when it emerged from the Senate Subcommittee is the language “except that no such employee benefit plan shall excuse the failure to hire any individual.” Rather than reading this addendum as a redundancy, as does the dissent, post, at 212, and n. 5, it is clear this is the result of Senator Javits’ concern that observance of existing retirement plan terms might discourage hiring of older workers. Supra, at 200. Giving meaning to each of these provisions leads inescapably to the conclusion they were intended to permit observance of the mandatory retirement terms of bona fide retirement plans, but that the existence of such plans could not be used as an excuse not to hire any person because of age.

There is no reason to doubt that Secretary Wirtz fully appreciated the difference between the administration and Senate bills. He was aware of Senator Javits’ concerns, and knew the Senator sought to amend the original bill to focus on the hiring of older persons notwithstanding the existence of pension plans which they might not economically be permitted to join. See Senate Hearings 40. Senator Javits’ view was enacted into law making it possible to employ such older persons without compulsion to include them in pre-existing plans.

The dissent misconceives what was said in the Senate debate. The dialogue between Senators Javits and Yarborough, the minority and majority managers of the bill, respectively, is set out below and clearly shows awareness of the continued vitality of pre-age-65 retirements.

III

Iii this case, of course, our function is narrowly confined to discerning the meaning of the statutory language; we do not pass on the wisdom of fixed mandatory retirements at a particular age. So limited, we find nothing to indicate Congress intended wholesale invalidation of retirement plans instituted in good faith before its passage, or intended to require employers to bear the burden of showing a business or economic purpose to justify bona fide pre-existing plans as the Fourth Circuit concluded. In ordinary parlance, and in dictionary definitions as well, a subterfuge is a scheme, plan, stratagem, or artifice of evasion. In the context of this statute, “subterfuge” must be given its ordinary meaning and we must assume Congress intended it in that sense. So read, a plan established in 1941, if bona fide, as is conceded here, cannot be a subterfuge to evade an Act passed 26 years later. To spell out an intent in 1941 to evade a statutory requirement not enacted until 1967 attributes, at the very least, a remarkable prescience to the employer. We reject any such per se rule requiring an employer to show an economic or business purpose in order to satisfy the subterfuge language of the Act.

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

Reversed and remanded.

Mr. Justice Stewart,

concurring in the judgment.

The Age Discrimination in Employment Act of 1967, 29 U. S. C. § 621 et seq., forbids any employer to discharge or otherwise discriminate against any employee between the ages of 40 and 65 because of his age. 29 U. S. C. § 623 (a)(1). But the Act also expressly provides that it is not unlawful for an employer to observe the terms of a bona fide employee benefit plan, such as a retirement plan, so long as the plan is not a “subterfuge to evade the purposes” of the Act. § 623 (f)(2).

It is conceded that United’s retirement plan is bona fide. The only issue, then, is whether it is a “subterfuge to evade the purposes” of the Act. I think it is simply not possible for a bona fide retirement plan adopted long before the Act was even contemplated to be a “subterfuge” to “evade” either its terms or its purposes.

Since § 623 (f) (2) on its face makes United’s action under the retirement plan lawful, it is unnecessary to address any of the other questions discussed in the Court's opinion or by Mr. Justice White.

Mr. Justice White,

concurring in the judgment.

I

While I agree with the Court and with Mr. Justice Stewart that McMann’s forced retirement at age 60 pursuant to United’s retirement income plan does not violate the Age Discrimination in Employment Act of 1967, 29 U. S. C. § 621 et seq., I disagree with the proposition that this bona fide plan necessarily is made lawful under § 4 (f) (2) of the Act, 29 U. S. C. §623 (f)(2), merely because it was adopted long before the Act's passage. Even conceding that the retirement plan could not have been a subterfuge to evade the purposes of the Act when it was adopted by United in 1941, I believe that the decision by United to continue the mandatory aspects of the plan after the Act became effective in 1968 must be separately examined to determine whether it is proscribed by the Act.

The legislative history indicates that the exception contained within § 4 (f) (2) “applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967) (emphasis supplied); S. Rep. No. 723, 90th Cong., 1st Sess., 4 (1967) (emphasis supplied). This statement in both the House and Senate Reports demonstrates that there is no magic in the fact that United’s retirement plan was adopted prior to the Act, for not only the plan’s establishment but also its maintenance must be scrutinized. For that reason, unless United was legally bound to continue the mandatory retirement aspect of its plan, its decision to continue to require employees to retire at age 60 after the Act became effective must be viewed in the same light as a post-Act decision to adopt such a plan.

No one has suggested in this case that United did not have the legal option of altering its plan to allow employees who desired to continue working beyond age 60 to do so; at the most it has been concluded that United simply elected to apply its retirement policy uniformly. See ante, at 196. Because United chose to continue its mandatory retirement policy beyond the effective date of the Act, I would not terminate the inquiry with the observation that the plan was adopted long before Congress considered the age discrimination Act but rather would proceed to what I consider to be the crucial question: Does the Act prohibit the mandatory retirement pursuant to a bona fide retirement plan of an employee before he reaches age 65? My reading of the legislative history, set out in Part II of the Court’s opinion, convinces me that it does not.

II

As the opinion of the Court demonstrates, Congress in passing the Act did not intend to make involuntary retirements unlawful. In recommending the legislation to Congress, President Johnson specifically suggested an exception for those "special situations . . . where the employee is separated under a regular retirement system.” 113 Cong. Pec. 1089-1090 (1967) , Pursuant to this recommendation, the House and Senate bills that were referred to committee expressly excepted involuntary retirements from the Act’s prohibition, an exception which, with only slight changes, remained in the final version enacted by Congress. As the Court correctly concludes, the changes that were made in § 4 (f) (2) were intended, not to eliminate the protection for retirement plans, but rather to meet the additional concern expressed by Senator Javits concerning the applicability of retirement plans to older workers who are hired. While the discussion in Congress concerning the language change was not extensive, it indicated that the change was intended to broaden the exception for retirement plans. I thus find unacceptable the dissent’s view that Congress acceded to labor’s suggestion that the protection for involuntary retirement be eliminated.

III

In this case, the Fourth Circuit recognized the fact that United’s retirement plan is “bona fide” in the sense that it provides McMann with substantial benefits. The court, however, viewed as separate and additional the requirement that the plan not be a subterfuge to evade the purposes of the Act. I find no support in the legislative history for the interpretation of that language as requiring “some economic or business purpose.” 542 F. 2d 217, 221 (CA4 1976). Rather, as I read the history, Congress intended to exempt from the Act’s prohibition all retirement plans — even those whose only purpose is to terminate the services of older workers — as long as the benefits they pay are not so unreasonably small as to make the “retirements” nothing short of discharges.

What little discussion there was in Congress concerning the meaning of the § 4 (f) (2) exception indicates that the no-subterfuge requirement was merely a restatement of the requirement that the plan be bona fide. See 113 Cong. Rec. 31255 (1967). It is significant that the subterfuge language was contained in the original administration bill, for that version was recognized as being “intended to protect retirement plans.” See ante, at 199. Because all retirement plans necessarily make distinctions based on age, I fail to see how the subterfuge language, which was included in the original version of the bill and was carried all the way through, could have been intended to impose a requirement which almost no retirement plan could meet. For that reason I would interpret the § 4 (f) (2) exception as protecting actions taken pursuant to a retirement plan which is designed to pay substantial benefits.

Because the Court relies exclusively upon the adoption date of United’s retirement plan as a basis for concluding that McMann’s forced retirement was not unlawful, I cannot join its opinion. Instead, I would adopt the approach taken by the Third Circuit in Zinger v. Blanchette, 549 F. 2d 901 (1977), cert. pending, No. 76-1375, and would hold that his retirement was valid under the Act, not because the retirement plan was adopted by United prior to the Act’s passage, but because the Act does not prohibit involuntary retirements pursuant to bona fide plans.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

Today the Court, in its first encounter with the Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U. S. C. § 621 et seq., sharply limits the reach of that important law. In apparent disregard of settled principles of statutory construction, it gives an unduly narrow interpretation to a congressional enactment designed to remedy arbitrary discrimination in the workplace. Because I believe that the Court misinterprets the Act, I respectfully dissent.

But for §4 (f)(2) of the Act, 29 U. S. C. § 623 (f)(2), petitioner’s decision to discharge respondent because he reached the age of 60 would violate § 4 (a)(1), 29 U. S. C. § 623 (a)(1). This latter section makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual [between 40 and 65] with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

The language used in §4 (a)(1) tracks the language of § 703 (a)(1) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2 (a)(1). This section has been interpreted as forbidding involuntary retirement when improper criteria, such as race or sex, are used in selecting those to be retired. With reference to the statutory language, courts have reasoned that forced retirement is “tantamount to a discharge,” Bartmess v. Drewrys U. S. A., Inc., 444 F. 2d 1186, 1189 (CA7), cert. denied, 404 U. S. 939 (1971), or that the employer requiring retirement is “discriminating] against” the retired employee “with respect to . . . [a] condition ... of employment,” see Peters v. Missouri-Pacific R. Co., 483 F. 2d 490, 492 n. 3 (CA5), cert. denied, 414 U. S. 1002 (1973); Rosen v. Public Service Electric & Gas Co., 477 F. 2d 90, 94-95 (CA3 1973); Bartmess v. Drewrys U. S. A., Inc., supra, at 1188-1189.

Given these constructions of § 703 (a)(1) of the Civil Rights Act and the absence of any indication that Congress intended §4 (a)(1) of the Age Discrimination in Employment Act to be interpreted differently, I would construe the identical language of the two statutes in an identical manner. The question that remains is whether § 4 (f) (2) sanctions this otherwise unlawful act. That section provides:

“It shall not be unlawful for an employer ... to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of {the Act] . . . .”

The opinion of the Court assumes that this language is clear on its face. Ante, at 199. I cannot agree with this premise. In my view, the statutory language is susceptible of at least two interpretations, and the only reading consonant with congressional intent would preclude involuntary retirement of employees covered by the Act.

On this latter reading, § 4 (f) (2) allows different treatment of older employees only with respect to the benefits paid or available under certain employee benefit plans, including pension and retirement plans. Alternatively, the section may be read, as the Court has read it, also to permit involuntary retirement of older employees prior to age 65 pursuant to a pension or retirement benefit plan. Ante, at 198. The critical question, then, is whether the phrase "employee benefit plan,” as used by Congress here to include a “retirement, pension or insurance plan,” encompasses only the rules defining what benefits retirees receive, or whether it also encompasses rules mandating retirement at a particular age.

We need not decide on a Strictly grammatical basis which reading is preferable. We are judges, not linguists, and our task is to divine congressional intent, using all available evidence. “[W]ords are inexact tools at best, and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how 'clear the words may appear on “superficial examination.” ’ ” Harrison v. Northern Trust Co., 317 U. S. 476, 479 (1943), quoting United States v. American Trucking Assns., 310 U. S. 534, 544 (1940). See Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976).

The Courtis analysis of the legislative history establishes that the primary purpose of the Act was to facilitate the hiring of older workers. I have no quarrel with that proposition. Understanding this primary purpose, however, aids not at all in determining whether Congress also intended to prohibit forced retirement of those already employed. The Court’s analysis of the legislative history on this issue, ante, at 199-202, on which Mr. Justice White relies, ante, at 206, is unpersuasive, since it relies primarily on references to an exception that was not enacted.

There can be no question, that had Congress enacted § 4 (f) (2) in the form in which it was proposed by the administration, forced retirement would be permissible. That section of the initial bill quite specifically allowed such retirement. It provided:

“It shall not be unlawful for an employer ... to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act . . . .” S. 830 and H. R. 4221, §4 (f)(2), 90th Cong., 1st Sess. (1967).

Thus the remarks of Secretary Wirtz, Senator Javits, and the representative of the AFL-CIO on which the Court relies, see ante, at 199-201, quite properly reflect that the bill as it then existed would have authorized involuntary retirement. But the present benefit-plan exception to the § 4 (a) prohibition on age discrimination differs significantly from that contained in the original bill. The specific authorization for involuntary retirement was deleted. That this deletion was made may of itself suggest that Congress concluded such an exception was unwise; a review of the legislative history strongly supports this view.

Two sets of objections were made to the bill during the Senate and House hearings. Many persons, including members of the Committees, expressed concern that the bill did “not provide any flexibility in the amount of pension benefits payable to older workers depending on their age when hired, and thus may actually encourage employers, faced with the necessity of paying greatly increased premiums, to look for excuses not to hire older workers when they might have hired them under a law granting them a degree of flexibility with respect to such matters.” Statement of Sen. Javits, Senate Hearings 27; see also, e. cj., House Hearings 62-63 (statement of Labor Counsel, Chamber of Commerce of the United States). Representatives of organized labor voiced totally different objections to the initial version of § 4 (f) (2); they argued against permitting any involuntary retirement based on age for those within the coverage of the bill, whether or not pursuant to a bona fide plan. Senate Hearings 98; House Hearings 413. In addition, they suggested that bona fide seniority systems should receive express protection under § 4 (f).

After the hearings, the House and Senate Committees changed the exemption section to its present form. By adding to § 4 (f) (2) a provision permitting observance of bona fide seniority systems, Congress acceded to organized labor’s concern that seniority systems not be abrogated. The addition of language permitting observance of the terms of a benefit plan was plainly responsive to the numerous criticisms that the bill would deter employment of older workers. But the third ehange that was made — the deletion of the specific language permitting involuntary retirement — was not responsive to either of those criticisms, since deletion of that language could have no effect on the hiring of older workers or on seniority systems. A reasonable ihference to be drawn from the deletion, therefore, is that Congress was responding to labor’s other objection by removing the authorization for involuntary retirement from the exceptions to the statute’s prohibitions. While, as the Court notes, ante, at 201, the specific language proposed by labor was not adopted, the Court offers no alternative explanation for the deletion of the explicit authorization for involuntary retirement.

In contrast to the hearings on the original version of the § 4 (f) (2) exception, where there are repeated references to the fact that the bill permitted involuntary retirement, there are no similar statements in the Committee Reports or in the House and Senate debates with respect to the amended version of §4(f)(2). For example, the House and Senate Committee Reports explain the purpose and effect of § 4 (f)(2) as follows:

“This exception serves to emphasize the primary purpose of the bill — hiring of older workers — by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967).

See S. Rep. No. 723, 90th Cong., 1st Sess., 4 (1967). Nowhere did the Committees suggest that the exemption permitted involuntary retirements. Indeed, their emphasis on encouraging the employment of older workers by allowing employers to make distinctions based on age in the provision of certain ancillary employment benefits, fully accords with the view that § 4 (f) (2) was intended only to permit those variations. Moreover, when the sponsors of the legislation explained the bill to the House and Senate during the debates preceding its passage, they made no mention of the possibility that § 4 (f) (2) permitted involuntary retirement and discussed it in terms incompatible with any such interpretation. The following exchange between Senator Javits, the minority floor manager of the bill and Senator Yarborough, the majority floor manager, is illustrative:

“Mr. JAVITS. The meaning of this provision is as follows: An employer will not be compelled under this section to afford to older workers exactly the same pension, retirement, or insurance benefits as he affords to younger workers. If the older worker chooses to waive all of those provisions, then the older worker can obtain the benefits of this act, but the older worker cannot compel an employer through the use of this act to undertake some special relationship, course, or other condition with respect to a retirement, pension, or insurance plan which is not merely a subterfuge to evade the purposes of the act— and we understand that — in order to give that older employee employment on the same terms as others.
“I would like to ask the manager of the bill whether he agrees with that interpretation, because I think it is very necessary to make its meaning clear to both employers and employees. . . .
“Mr. YARBOROUGH. I wish to say to the Senator that that is basically my understanding of the provision in line 22, page 20 of the bill, clause 2, subsection (f) of section 4, when it refers to retirement, pension, or insurance plan, it means that a man who would not have been employed except for this law does not have to receive the benefits of the plan. Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years so that a 55-year-old employee would not be employed past 10 years. This means he cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan.
“Mr. JAYITS. I thank my colleague. That is important to business people.” 113 Cong. Rec. 31255 (1967) (emphasis added).

The statements of those who criticized the bill for not going far enough lend still further support to the interpretation of the Act that would preclude forced retirement of persons covered by the Act. Senator Young spoke eloquently against subjecting those aged 65 or older to “[c]ompulsory retirement programs” which, he proclaimed, “have forged an iron collar” for those Americans “ready, willing and able” to work past 65. Id., at 31256. Senator Young never alluded to the possibility that compulsory retirement of those under 65 and thus covered by the Act would be permitted, since the unmistakable premise of his argument was that, under the law being considered, compulsory retirement of covered employees was prohibited. Ibid. Others criticized § 4 (f) (2) because it authorized employers to deny older employees various benefits in accordance with benefit plans, but again made no reference to the possibility of forced retirement of covered employees. 113 Cong. Rec., at 34745 (remarks of Rep. Smith); id., at 34750 (remarks of Rep. Randall). In view of the tenor and substance of those objections to the Act, it is inconceivable that these Congressmen would have remained silent had they understood § 4 (f) (2) to allow involuntary retirement before the age of 65.

Any doubt as to the correctness of reading the Act to prohibit forced retirement is dispelled by considering the anomaly that results from the Court’s contrary interpretation. Under §§ 4 (a) and 4 (f)(2), see n. 5, supra, it is unlawful for an employer to refuse to hire a job applicant under the age of 65 because of his age. If, as the Court holds, involuntary retirement before age 65 is permissible under § 4 (f) (2), the individual so retired has a simple route to regain his job: He need only reapply for the vacancy created by his retirement. As a new applicant, the individual plainly cannot be denied the job because of his age. And as someone with experience in performing the tasks of the “vacant” job he once held, the individual likely will be better qualified than any other applicant. Thus the individual retired one day would have to be hired the next. We should be loathe to attribute to Congress an intention to produce such a bizarre result.

One final reason exists for rejecting the Court’s broad interpretation of the Act’s exemption. The Age Discrimination in Employment Act is a remedial statute designed, in the Act’s own words, “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” § 2 (b), 29 U. S. C. § 621 (b). It is well settled that such legislation should “be given a liberal interpretation . . . [and] exemptions from its sweep should be narrowed and limited to effect the remedy intended.” Piedmont & Northern R. Co. v. ICC, 286 U. S. 299, 311-312 (1932). See also, e. g., Phillips Co. v. Walling, 324 U. S. 490, 493 (1945). To construe the § 4 (f) (2) exemption broadly to authorize involuntary retirement when no statement in the Committee Reports or by the Act’s floor managers or sponsors in the debates supports that interpretation flouts this fundamental principle of construction.

The mischief the Court fashions today may be short lived. Both the House and Senate have passed amendments to the Act. 123 Cong. Rec. H9984-9985 (daily ed. Sept. 23, 1977) ; id., at S17303 (daily ed. Oct. 19, 1977). The amendments to § 4 (f) (2) expressly provide that the involuntary retirement of employees shall not be permitted or required pursuant to any employee benefit plan. Thus, today’s decision may have virtually no prospective effect. But the Committee Reports of both Houses make plain that, properly understood, the existing Act already prohibits involuntary retirement, and that the amendment is only a clarification necessitated by court decisions misconstruing congressional intent. H. R. Rep. No. 95-527, pp. 5-6 (1977); id., at 27 (additional views of Rep. Weiss, quoting statement of Sen. Javits); S. Rep. No. 95-493, pp. 9-10 (1977). Because the Court today has also misconstrued congressional intent and has thereby deprived many older workers of the protection which Congress sought to afford, I must dissent.

       The plan paid retirement benefits pursuant to a group annuity contract between United and two life insurance companies.

       The same concession was made in this Court.

       No brief amicus was filed on behalf of the Department of Labor in this Court, but after submission of the case following oral argument the Solicitor General wrote a letter to the Clerk of this Court stating that the Government agreed with the Eourth Circuit and was prepared to file a brief amicus within three weeks. The Rules of this Court do not allow the filing of briefs amicus after oral argument. See Rule 42. No motion for leave to file a brief amicus was filed.

       We note, too, that the Department of Labor’s interpretation of § 4 (f) (2), issued nearly contemporaneously with the effective date of the Act, was that the meaning did not turn on whether or not all employees under a plan are required to retire at the same age.
      “The fact that an employer may decide to permit certain employees to continue working beyond the age stipulated in the formal retirement program does not, in and of itself, render an otherwise bona fide plan invalid, insofar as the ¡exception provided in Section 4 (f) (2) is concerned.” 29 CFR §860.110 (a) (1976).
      The Department’s more recent position on the section is that pre-65 retirements “are unlawful unless the mandatory retirement provision . . . is required by the terms of the plan and is not optional . . . .” U. S. Department of Labor, Annual Report on Age Discrimination in Employment Act of 1967, p. 17 (1975). Having concluded, as did the Court of Appeals, that the United plan calls for mandatory retirement at age 60, however, we need not consider this further.

       Similarly, in De Loraine v. MEBA Pension Trust, 499 F. 2d 49 (CA2), cert. denied, 419 U. S. 1009 (1974), the court said a bona fide pension plan ¡established in 1955 was not a subterfuge. That case did not properly present the question of whether the Act forbade involuntary retirement before age 65 and the court did not purport to decide it. 499 F. 2d, at 51 n. 7. Steiner v. National League of Professional Baseball Clubs, 377 F. Supp. 945, 948 (CD Cal. 1974), aff’d, No. 74-2604 (CA9, Oct. 15, 1975), likewise rejected the idea that a pension plan established long before the Act could be a subterfuge saying: “Obviously it could not have been evolved in an attempt to circumvent any public policy or law.”

         Section 4 (f)(2) of the original administration bill provided: “It shall not be unlawful for an employer ... to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act . . . .”

       Legislative observations 10 years after passage of the Act are in no sense part of the legislative history. See post, at 218.

       “Mr. YARBOROUGH. I wish to say to the Senator that that is basically my understanding of the provision in line 22, page 20 of the bill, clause 2, subsection (f) of section 4, when it refers to retirement, pension, or insurance plan, it means that a man who would not have been employed except for this law does not have to receive the benefits of the plan. Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years'so that a 55-year-old employee would not be employed past 10 years. This means he cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan.
      “Mr. JAVITS. I thank my colleague. That is important to business people.” 113 Cong. Rec. 31255 (1967).

       Reference is made by the dissent, post, at 219 n, 13, to a recital on §4 (f)(2) in the House Report. The House Report states:
      “[Section 4 (f) (2)] applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans. This exception serves to emphasize the primary purpose of the bill — hiring of older workers — by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967). (Emphasis supplied.)
      The italicized portion shows quite clearly that the primary purpose of the bill was the hiring of older workers. A quite different question would be presented if a pre-existing bona fide plan were used as a reason for refusing to hire an older applicant for employment.

       Other exceptions recommended by the President, which were included within the final version of the Act, covered “special situations where age is a reasonable occupational qualification, [and] where an employee is discharged for good cause . . . 113 Cong. Rec. 1089-1090 (1967).

       S. 830, 90th Cong., 1st Sess. (1967); H. R. 4221, 90th Cong., 1st Sess. (1967).

       Section 703 (a) (1) provides that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to disr-criminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”

       Courts have also suggested that involuntary retirement of an employee on a discriminatory basis might violate § 703 (a) (2) of the' Civil Rights Act of 1964, which proscribes classification by an employer of an employee in a way which would “adversely affect his status as an employee,” 42 U. S. C. § 2000e-2 (a) (2). Bartmess v. Drewrys U. S. A., Inc., 444 F. 2d, at 1189; Peters v. Missouri-Pacific R. Co., 483 F. 2d, at 495. Section 4 (a) (2) of the Age Discrimination in Employment Act, 29 U. S. C. §623 (a)(2), includes an identical prohibition.

       This reading is illustrated by Senator Yarborough’s example of the effect of § 4 (f) (2):
      “Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years so that a 55-year-old employee would not be employed past 10 years. This means be cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan.” 113 Cong. Rec. 31255 (1967).

       Hearings on S. 830 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967) (hereafter Senate Hearings); Hearings on H. R. 4221 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess. (1967) (hereafter House Hearings).

       The Committees’ concern that the Act not deter employers from hiring older employees is also reflected in the amendment to the section providing that “no such employee benefit plan shall excuse the failure to hire any individual.” §4 (f) (2), 29 U. S. C. § 623 (f) (2).

       The Committees were certainly aware that Congress could retain the provision specifically authorizing involuntary retirement and add to it a provision permitting variation in the coverage of insurance and benefit plans. Many of the state statutes at which the Committees looked employed that approach. Senate Hearings 298-315; House Hearings 501-518 (e. g., Connecticut, Indiana, Maine, Pennsylvania). That they deleted the specific authorization rather than follow the model of those state statutes is not without significance.

       The Senate Committee Report’s description, although otherwise identical, did not include the statement that the amendment was considered vital. Supra, this page.

       During the hearings, Senator Javits indicated that the administration bill might raise problems concerning existing pension plans. He stated that the involuntary retirement provision did not adequately address whether variations in benefits based on age would be permitted. Senate Hearings 27. Although, as the Court notes, he offered no objection during the hearings to the provision allowing involuntary retirement, it is significant that at no point in his statements on the floor of the Senate did he even hint that the bill as revised permitted involuntary retirement. Since Senator Javits had expressly acknowledged the permissibility of involuntary retirement under the administration’s bill at the hearings, in explaining at length the meaning of § 4 (f) (2) as revised by the Committee he would surely have adverted to involuntary retirement if it were still allowed.

       The Court somehow finds that the above dialogue indicates approval by Senators Yarborough and Javits of mandatory retirement before age 65. Ante, at 202. I see nothing in this dialogue to suggest that the Senators thought involuntary retirement before age 65 was permissible.

       In contrast to this history which demonstrates forcefully that § 4 (f) (2) was not intended to provide for involuntary retirement, there are only two pieces of legislative history that provide even a modicum of support for the Court’s interpretation. First, when he testified during the hearings on the House bill which then specifically permitted involuntary retirement, Secretary Wirtz was asked about the effect of the Senate Committee’s modification of §4 (f)(2). He responded that “[w]e count that change as not going to the substance and involving matters going to clarification which would present no problem.” House Hearings 40. Since no exemption for benefit plans had been provided in the original bill, it is difficult to understand how Secretary Wirtz could reasonably have called the change only a “clarification.” In any event, his statement at the hearings is entitled to far less weight than the Committee Reports and the statements by the floor managers and sponsors of the Act. See Maintenance

        Employes v. United States, 366 U. S. 169, 176-177 (1961); Leedom v. Mine, Mill, & Smelter Workers, 362 U. S. 145, 149-150 (1956).
      Second, on the House floor, Representatives Eilberg and Olsen, in voicing their support for the bill, stated that one reason the bill was necessary was that people who were retired needed to have opportunities for other employment open to them. 113 Cong. Rec. 34745 (1967); id., at 34746. It is not entirely clear whether they were referring to people who would be involuntarily retired in the future, or only to those who had been retired prior to enactment of the Act. But even if they were implicitly expressing the view that the Act permits involuntary retirement, their statements stand in opposition to the clear import of every other statement on the floor of each House, as well as to the Committee Reports. Such a conflict must be resolved in favor of “the statements of those . . . most intimately connected with the final version of the statute.” Maintenance Employes v. United States, supra, at 176-177. See remarks of Senator Yar-borough, quoted supra, at 215.

       Indeed both the House and Senate bills provide that, because the addition to § 4 (f) (2) is only a clarification, it is to be effective immediately; by contrast, the effective date for other changes regarded as alterations of the 1967 Act has been deferred.

       The Committee Reports cite and discuss Zinger v. Blanchette, 549 F. 2d 901 (CA3 1977), cert. pending, No. 76-1375; Brennan v. Taft Broadcasting Co., 500 F. 2d 212 (CA5 1974); and the instant case. H. R. Rep. No. 95-527, p. 5; S. Rep. No. 95-493, p. 10.

       Because I do not interpret § 4 (f) (2) to authorize involuntary retirement, I have no occasion to address the questions discussed by the Court, ante, at 197-198, and by Mr. Justice Stewart, ante, at 204, as to whether the plan involved here is “a subterfuge to evade the purposes of [the Act],” 29 U. S. C. § 623 (f) (2). I am compelled to note, however, my emphatic disagreement with their suggestion that a pre-Act plan cannot be a subterfuge to avoid the purposes of the Act. The 1967 Committee Reports of both Houses expressly state: “It is important to note that [§ 4 (f) (2)] applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans. This exception serves to emphasize the primary purpose of the bill — hiring of older workers — by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967); see S. Rep. No. 723, 90th Cong., 1st Sess., 4 (1967).


author: Mr. Justice Powell Me. Justice Rehnquist, Mr. Justice Blackmun,

text:
    MOORE v. ILLINOIS
    No. 76-5344.
    Argued October 3, 1977
    Decided December 12, 1977

      Patrick J. Hughes, Jr., argued the cause and filed briefs for petitioner.

      Charles H. Levad, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the briefs was William J. Scott, Attorney General.
   Mr. Justice Powell

delivered the opinion of the Court.

Petitioner was convicted of rape and related offenses. At trial the complaining witness testified on direct examination by the prosecution that she had identified petitioner at a preliminary hearing at which he was not represented by counsel. The State Supreme Court affirmed petitioner's convictions, and the Federal District Court and Court of Appeals denied habeas corpus relief. We granted certiorari because of an apparent conflict between the decisions below and our holdings with respect to the right to counsel at corporeal identifications in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Kirby v. Illinois, 406 U. S. 682 (1972). We reverse.

I

The victim of the offenses in question lived in an apartment on the South Side of Chicago. Shortly after noon on December 14, 1967, she awakened from a nap to find a man standing in the doorway to her bedroom holding a knife. The man entered the bedroom, threw her face down on the bed, and choked her until she was quiet. After covering his face with a bandana, the intruder partially undressed the victim, forced her to commit oral sodomy, and raped her. Then he left, taking a guitar and a flute from the apartment.

When police arrived, the victim gave them a description of her assailant. Although she did not know who he was and had seen his face for only 10 to 15 seconds during the attack, she thought he was the same man who had made offensive remarks to her in a neighborhood bar the night before. She also gave police a notebook she had found next to her bed after the attack.

In the week that followed, police showed the victim two groups of photographs of men. From the first group of 200 she picked about 30 who resembled her assailant in height, weight, and build. From the second group of about 10, she picked two or three. One of these was of petitioner. Police also found a letter in the notebook that the victim had given them. Investigation revealed that it was written by a woman with whom petitioner had been staying. The letter had been taken from the woman’s home in her absence, and petitioner appeared to be the only other person who had access to the home.

On the evening of December 20, 1967, police arrested petitioner at his apartment and held him overnight pending a preliminary hearing to determine whether he should be bound over to the grand jury and to set bail. The next morning, a policeman accompanied the victim to the Circuit Court of Cook County (First Municipal District) for the hearing. The policeman told her she was going to view a suspect and should identify him if she could. He also had her sign a complaint that named petitioner as her assailant. At the hearing, petitioner’s name was called and he was led before the bench. The judge told petitioner that he was charged with rape and deviate sexual behavior. The judge then called the victim, who had been in the courtroom waiting for the case to be called, to come before the bench. The State’s Attorney stated that police had found evidence linking petitioner with the offenses charged. He asked the victim whether she saw her assailant in the courtroom, and she pointed at petitioner. The State’s Attorney then requested a continuance of the hearing because more time was needed to check fingerprints. The judge granted the continuance and fixed bail. Petitioner was not represented by counsel at this hearing, and the court'did not offer to appoint counsel.

At a subsequent hearing, petitioner was bound over to the grand jury, which indicted him for rape, deviate sexual behavior, burglary, and robbery. Counsel was appointed, and he moved to suppress the victim’s identification of petitioner because it had been elicited at the preliminary hearing through an unnecessarily suggestive procedure at which petitioner was not represented by counsel. After an evidentiary hearing the trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim’s identification.

At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing. She also testified that the defendant on trial was the man who had raped her. The prosecution’s other evidence linking petitioner with the crimes was the letter found in the victim’s apartment. Defense counsel stipulated that petitioner had taken the letter from his woman friend’s home, but he presented evidence that petitioner might have lost the notebook containing the letter at the neighborhood bar the night before the attack. The defense theory was that the victim, who also was in the bar that night, could have picked up the notebook by mistake and taken it home. The defense also called witnesses who testified that petitioner was with them in a college lunchroom in another part of Chicago at the time the attack was committed.

The jury found petitioner guilty on all four counts, thus rejecting his theory and alibi. The trial court sentenced him to 30 to 50 years in prison. The Illinois Supreme Court affirmed. People v. Moore, 51 Ill. 2d 79, 281 N. E. 2d 294 (1972). It rejected petitioner’s argument that the victim’s identification testimony should have been excluded, on the ground that the prosecution had shown an “independent basis” for the identification. Id., at 86, 281 N. E. 2d, at 298. After this Court denied certiorari, 409 U. S. 979 (1972), petitioner sought a writ of habeas corpus from the Federal District Court. He contended that admission of the identification testimony at trial violated his Sixth and Fourteenth Amendment rights. Relying on the transcript from the state proceedings, the District Court denied the writ in an unpublished opinion, again on the ground that the prosecution had shown an independent basis for the identification. App. 31-35. The Court of Appeals for the Seventh Circuit affirmed in an unpublished opinion, United States ex rel. Moore v. Illinois, 534 F. 2d 331 (1976), and we granted certiorari. 429 U. S. 1061 (1977).

II

United States v. Wade, 388 U. S. 218 (1967), held that a pretrial corporeal identification conducted after a suspect has been indicted is a critical stage in a criminal prosecution at which the Sixth Amendment entitles the accused to the presence of counsel. The Court emphasized the dangers inherent in a pretrial identification conducted in the absence of counsel. Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused. Such a suggestion, coming Jrom a police officer or prosecutor, can lead a witness to make a mistaken identification. The witness then will be predisposed to adhere to this identification in subsequent testimony at trial. Id., at 229, 235-236. If an accused’s counsel is present at the pretrial identification, he can serve both his client’s and the prosecution’s interests by objecting to suggestive features of a procedure before they influence a witness’ identification. Id., at 236, 238. In view of the “variables and pitfalls” that exist at an uncounseled pretrial identification, id., at 235, the Wade Court reasoned:

“[T]he first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ” Id., at 235-236.

Wade and its companion case, Gilbert v. California, 388 U. S. 263 (1967), also considered the admissibility of evidence derived from a corporeal identification conducted in violation of the accused’s right to counsel. In Wade, witnesses to a robbery who had identified the defendant at an uncounseled pretrial lineup testified at trial on direct examination by the prosecution that he was the man who had committed the robbery. The prosecution did not elicit from the witnesses the fact that they had identified the defendant at the pretrial lineup. Nevertheless, because of the likelihood that the witnesses’ in-court identifications were based on their observations of the defendant at the uncounseled lineup rather than at the scene of the crime, the Court held that this testimony should have been excluded unless the prosecution could “establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” 388 U. S., at 240.

Gilbert differed from Wade in one critical respect. In Gilbert the prosecution did elicit testimony in its case-in-chief that witnesses had identified the accused at an uncounseled pretrial lineup. The Court recognized that such testimony would “enhance the impact of [a witness’] in-court identification on the jury and seriously aggravate whatever derogation exists of the accused’s right to a fair trial.” 388 U. S., at 273-274. Because “[t]hat testimony [was] the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality [,]’ Wong Sun v. United States, 371 U. S. 471, 488,” the prosecution was “not entitled to an opportunity to show that the testimony had an independent source.” Id., at 272-273; see also Wade, supra, at 240 n. 32. The Court announced this exclusionary rule in the belief that such a sanction is necessary “to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” Gilbert, supra, at 273. The Court therefore reversed the conviction and remanded to the state court for a determination of whether admission of this evidence was harmless constitutional error under Chapman v. California, 386 U. S. 18 (1967). 388 U. S., at 274.

In Kirby v. Illinois, 406 U. S. 682 (1972), the plurality opinion made clear that the right to counsel announced in Wade and Gilbert attaches only to corporeal identifications Conducted “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 406 U. S., at 689. This is so because the initiation of such proceedings “marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Id., at 690. Thus, in Kirby the plurality held that the prosecution’s evidence of a robbery victim’s one-on-one stationhouse identification of an uncoun-seled suspect shortly after the suspect’s arrest was admissible because adversary judicial criminal proceedings had not yet been initiated. In such cases, however, due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Id., at 690-691; Neil v. Biggers, 409 U. S. 188 (1972); Stovall v. Denno, 388 U. S. 293 (1967); see generally Manson v. Brathwaite, 432 U. S. 98 (1977).

III

In the instant case, petitioner argues that the preliminary hearing at which the victim identified him marked the initiation of adversary judicial criminal proceedings against him. Hence, under Wade, Gilbert, and Kirby, he was entitled to the presence of counsel at that confrontation. Moreover, the prosecution introduced evidence of this uncounseled corporeal identification at trial in its case-in-chief. Petitioner contends that under Gilbert, this evidence should have been excluded without regard to whether there was an “independent source” for it.

The Court of Appeals took a different view of the case. It read Kirby as holding that evidence of a corporeal identification conducted in the absence of defense counsel must be excluded only if the identification is made after the defendant is indicted. App. 45-46. Such a reading cannot be squared with Kirby itself, which held that an accused’s rights under Wade and Gilbert attach to identifications conducted “at or after the initiation of adversary judicial criminal proceedings,” including proceedings instituted “by way of formal charge [or] preliminary hearing.” 406 U. S., at 689. The prosecution in this case was commenced under Illinois law when the victim’s complaint was filed in court. See Ill. Rev. Stat., ch. 38, § 111 (1975). The purpose of the preliminary hearing was to determine whether there was probable cause to bind petitioner over to the grand jury and to set bail. §§ 109-1, 109-3. Petitioner had the right to oppose the prosecution at that hearing by moving to dismiss the charges and to suppress the evidence against him. § 109-3 (e). He faced counsel for the State, who elicited the victim’s identification, summarized the State’s other evidence against petitioner, and urged that the State be given more time to marshal its evidence. It is plain that “the government ha[d] committed itself to prosecute,” and that petitioner found “himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, supra, at 689. The State candidly concedes that this preliminary hearing. marked the “initiation of adversary judicial criminal proceedings” against petitioner, Brief for Respondent 8, and n. 1; Tr. of Oral Arg. 32, 34, and it hardly could contend otherwise. The Court of Appeals therefore erred in holding that petitioner’s rights under Wade and Gilbert had not yet attached at the time of the preliminary hearing.

The Court of Appeals also suggested that Wade and Gilbert did not apply here because the “in-court identification could hardly be considered a line-up.” App. 45. The meaning of this statement is not entirely clear. If the court meant that a one-on-one identification procedure, as distinguished from a lineup, is not subject to the counsel requirement, it was mistaken. Although Wade and Gilbert both involved lineups, Wade clearly contemplated that counsel would be required in both situations: “The pretrial confrontation for purpose of identification may take the form of a lineup ... or presentation of the suspect alone to the witness .... It is obvious that risks of suggestion attend either form of confrontation . . . .” 388 U. S., at 229; see also id., at 251 (White, J., dissenting in part and concurring in part); cf. Stovall v. Denno, supra; Kirby v. Illinois. Indeed, a one-on-one confrontation generally is thought to present greater risks of mistaken identification than a lineup. E. g., P. Wall, EyeWitness Identification in Criminal Cases 27-40 (1965); Williams & Hammelmann, Identification Parades — I, Crim. L. Rev. 479, 480-481 (1963). There is no reason, then, to hold that a one-on-one identification procedure is not subject to the same requirements as a lineup.

If the court believed that petitioner did not have a right to counsel at this identification procedure because it was conducted in the course of a judicial proceeding, we do not agree. The reasons supporting Wade’s holding that a corporeal identification is a critical stage of a criminal prosecution for Sixth Amendment purposes apply with equal force to this identification. It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case. The victim, who had seen her assailant for only 10 to 15 seconds, was asked to make her identification after she was told that she was going to view a suspect, after she was told his name and heard it called as he was led before the bench, and after she heard the prosecutor recite the evidence believed to implicate petitioner. Had petitioner been represented by counsel, some or all of this suggestiveness could have been avoided.

In sum, we are unpersuaded by the reasons advanced by -the Court of Appeals for distinguishing the identification procedure in this case from those considered in Wade and Gilbert. Here, as in those cases, petitioner’s Sixth Amendment rights were violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. The courts below thought that the victim’s testimony at trial that she had identified petitioner at an uncounseled pretrial confrontation was admissible even if petitioner’s rights had been violated, because there was an “independent source” for the victim’s identification at the uncounseled confrontation. 51 Ill. 2d, at 86, 281 N. E. 2d, at 298; App. 35 (District Court), 45-46 (Court of Appeals). But Gilbert held that the prosecution cannot buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of the accused’s Sixth Amendment rights, even if it can prove that the pretrial identification had an independent source. “That testimony is the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality,’ ” Gilbert, 388 U. S., at 272-273, and the prosecution is “therefore not entitled to an opportunity to show that the testimony had an independent source.” Id., at 273. Because the prosecution made use of such testimony in this case, petitioner is entitled to the benefit of the strict rule of Gilbert.

IV

In view of the violation of petitioner’s Sixth and Fourteenth Amendment right to counsel at the pretrial corporeal identification, and of the prosecution’s exploitation at trial of evidence derived directly from that violation, we reverse the judgment of the Court of Appeals and remand for a determination of whether the failure to exclude that evidence was harmless constitutional error under Chapman v. California, 386 U. S. 18 (1967). See Gilbert, supra, at 274. That court also will be free on remand to re-examine the other issues presented by the petition, upon which we do not pass.

Reversed and remanded.

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

Me. Justice Rehnquist,

concurring.

In 1964, this Court held that in certain limited circumstances a statement given to police after persistent questioning would be suppressed at trial if the suspect had repeatedly requested, and been denied, an opportunity to consult with his attorney. Escobedo v. Illinois, 378 U. S. 478, 490-491. At the time, there were intimations that this ruling rested largely on the Sixth Amendment guarantee of right to counsel at critical stages of the criminal proceeding. Id., at 48A-485, 486. Shortly thereafter, however, the Court perceived “that the ‘prime purpose’ of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-incrimination . . . Johnson v. New Jersey, 384 U. S. 719, 729.” Kirby v. Illinois, 406 U. S. 682, 689 (1972) (Stewart, J.). Cf. Darwin v. Connecticut, 391 U. S. 346, 349 (1968). Accordingly, Escobedo was largely limited to its facts. See Johnson v. New Jersey, 384 U. S. 719, 733-734 (1966); Kirby v. Illinois, supra; Frazier v. Cupp, 394 U. S. 731, 739 (1960); Michigan v. Tucker, 417 U. S. 433, 438 (1974). This, of course, left open the possibility of examining the voluntariness of a confession under a more appropriate standard — the totality of the circumstances. Cf. Clewis v. Texas, 386 U. S. 707 (1967).

I believe the time will come when the Court will have to re-evaluate and reconsider the Wade-Gilbert rule for many of the same reasons. The rule was established to ensure the accuracy and reliability of pretrial identifications and the Court will have to decide whether a per se exclusionary rule should still apply or whether Wade-Gilbert violations, like other questions involving the reliability of pretrial identification, should be judged under the totality of the circumstances. Cf. Manson v. Brathwaite, 432 U. S. 98, 106 (1977); cf. Kirby v. Illinois, supra, at 690-691; Simmons v. United States, 390 U. S. 377, 383 (1968); Stovall v. Denno, 388 U. S. 293, 302 (1967). However, since the State has chosen not to press this point and because I believe the Court’s opinion is a correct reading of Wade and Gilbert, I concur in the opinion and judgment of the Court.

Mr. Justice Blackmun,

concurring in the result.

I concur in the result, and I join the Court in remanding the case for a determination as to whether the adjudged error was harmless. On the record of this case, the conclusion that it was harmless seems to me to be almost inevitable; that, however, is for the courts below to decide in the first instance.

I feel, furthermore, that the Court in its opinion has made more out of this case than its facts warrant. As the Court points out, ante, at 228, the State of Illinois has conceded, Brief for Respondent 8, and n. 1; Tr. of Oral Arg. 32, 34, that the so-called preliminary hearing on December 21, 1967, at which the victim testified, was the initiation of adversary judicial criminal proceedings against petitioner. At trial, the victim testified that at that hearing she had identified petitioner as her assailant. This being so, the ban of Gilbert v. California, 388 U. S. 263 (1967), applies in full force and in itself would require the remand the Court orders. With the State’s concession, I see no need to wrestle with the issue whether what took place on December 21 marked the initiation of formal proceedings against petitioner in the sense of Kirby v. Illinois, 406 U. S. 682 (1972), and thereby possibly to become entangled with the ghost, unmentioned by the Court, of the holding in Coleman v. Alabama, 399 U. S. 1 (1970), determined not to be retroactive in Adams v. Illinois, 405 U. S. 278 (1972).

One last word: I disassociate myself from the implication— twice appearing in the Court’s opinion, ante, at 222 and at 229 — that there is something insignificant or unreliable about a rape victim’s observation during the crime of the facial features of her assailant when that observation lasts “only 10 to 15 seconds.” Time, of course, is always a comparative matter. Fifteen seconds perhaps would mean little in the identification of scores of separate individuals participating in an illegal riot. But 10 to 15 seconds of observation of the face of a rapist at midday by his female victim during the commission of the crime by no means is insufficient to leave an accurate and indelible impression on the victim. One need only observe another person’s face for 10 seconds by the clock to know this. To the resisting woman, the 10 to 15 seconds would seem endless. No female victim of a rape, given that period of daylight observation, will ever believe otherwise. I therefore cannot be a party to the Court’s degradation, and almost literal dismissal, of so vital an observation.

       Counsel for petitioner explicitly drew the court’s attention to our then recent decision in United States v. Wade, 388 U. S. 218 (1967): “If we may look at the Wade case, Your Honor, it has as its holding, Your Honor, the requirement that a defendant have an attorney at an identification procedure . . . .” Trial Transcript 132.

       Among the factors to be considered in making this determination are “the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.” 388 U. S., at 241.

       In United States v. Ash, 413 U. S. 300 (1973), the Court held that the Sixth Amendment does not require that defense counsel be present when a witness views police or prosecution photographic arrays. . A photographic showing, unlike a corporeal identification, is not a “trial-like adversary confrontation” between an accused and agents of the government; hence, “no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary.” Id., at 317. Moreover, even without attending the prosecution’s photographic showing, defense counsel has an equal chance to prepare for trial by presenting his own photographic displays to witnesses before trial. But “[duplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs.” Id., at 318 n. 10. An accused nevertheless is entitled to due process protection against the introduction of evidence of, or tainted by, unreliable identifications elicited through unnecessarily suggestive photographic displays. Id., at 320; Manson v. Brathwaite; Simmons v. United States, 390 U. S. 377 (1968).

       Immediately before the State's Attorney asked the victim to identify petitioner, he stated:
      “This is an allegation of rape and deviate sexual assault. It’s a home invasion of an apartment in Hyde Park and the victim was raped and forced to commit an oral copulation. Taken from her was a guitar and other instruments. When the defendant was arrested upon an arrest warrant signed by the Judge of the Court, the articles, the guitar and other instruments were found in the apartment, as were the clothes described of the man that attacked her that day.” App. 48-49.
      It appears from the record that although a guitar and a flute were found in petitioner’s apartment when he was arrested, they were not the ones taken from the victim’s apartment and they were not introduced into evidence at petitioner’s trial. Transcript of Proceedings at Hearing of Feb. 5, 1968, p. 10; Trial Transcript 4A-45, 400-401. Neither was any clothing.

       For example, counsel could have requested that the hearing be postponed until a lineup could be arranged at which the victim would view petitioner in a less suggestive setting. See, e. g., United States v. Ravich, 421 F. 2d 1196, 1202-1203 (CA2), cert. denied, 400 U. S. 834 (1970); Mason v. United States, 134 U. S. App. D. C. 280, 283 n. 19, 414 F. 2d 1176, 1179 n. 19 (1969). Short of that, counsel could have asked that the victim be excused from the courtroom while the charges were read and the evidence against petitioner was recited, and that petitioner be seated with other people in the audience when the victim attempted an identification. See Allen v. Rhay, 431 F. 2d 1160, 1165 (CA9 1970), cert. denied, 404 U. S. 834 (1971). Counsel might have sought to cross-examine the victim to test her identification before it hardened. Cf. Haberstroh v. Montanye, 493 F. 2d 483, 485 (CA2 1974); United States ex rel. Riffert v. Rundle, 464 F. 2d 1348, 1351 (CA3 1972), cert. denied sub nom. Riffert v. Johnson, 415 U. S. 927 (1974). Because it is in the prosecution’s interest as well as the accused’s that witnesses’ identifications remain untainted, see Wade, 388 U. S., at 238, we cannot assume that such requests would have been in vain. Such requests ordinarily are addressed to the sound discretion of the court, see United States v. Ravich, supra, at 1203; we express no opinion as to whether the preliminary hearing court would have been required to grant any such requests.

       The existence of an “independent source” was thought to be demonstrated by the victim’s selection of a picture of petitioner from the second photographic array. The courts below and the parties here have not been certain as to how many pictures the victim actually selected from that array. Although there is some ambiguity in the record, compare Trial Transcript 110-111, 113-114, 167, 290-292, 294, 307-308, 421, 454, with id., at 155-156, 158, 231-232, we think a fair reading indicates that the victim selected more than one photograph and that she did not make a positive identification of petitioner from them. But resolution of this factual issue is not necessary to our decision in this case.

       In addition to his Gilbert argument, petitioner urges that the victim’s in-court identification was tainted by the prior uncounseled identification, see Wade; that the in-court identification was the unreliable product of an unnecessarily suggestive identification procedure and should have been excluded under the Due Process Clause of the Fourteenth Amendment, see Manson v. Brathwaite, 432 U. S. 98 (1977); and that the trial court’s denial of a transcript of the preliminary hearing was prejudicial constitutional error, see Roberts v. LaVallee, 389 U. S. 40 (1967).

        United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967).


author: Per Curiam.

text:
    CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) v. SOUTH ACRES DEVELOPMENT CO.
    No. 77-267.
    Decided January 9, 1978
   Per Curiam.

The issue in this case is whether Congress has authorized the District Court of Guam to exercise federal diversity jurisdiction. Respondent brought suit in the Guam District Court, claiming that the court had jurisdiction over its action on the basis of diverse citizenship. The court agreed, denied petitioner’s motion to dismiss for lack of jurisdiction, Mailloux v. Mailloux, 417 F. Supp. 11 (1975), and a divided Court of Appeals affirmed. 554 F. 2d 976 (CA9 1977). Because Congress has neither explicitly nor implicitly granted diversity jurisdiction to the District Court of Guam, we reverse.

As part of the Organic Act of Guam, Congress created the District Court of Guam. 64 Stat. 389, 48 U. S. C. § 1424 (a). The District Court was established “under Art. IV, § 3, of the Federal Constitution rather than under Art. III,” Guam v. Olsen, 431 U. S. 195, 196-197, n. 1 (1977), and Congress provided that the District Court would have the following jurisdiction:

“The District Court of Guam shall have the jurisdiction of a district court of the United States in all causes arising- under the Constitution, treaties, and laws of the United States, regardless of the sum or value of the matter in controversy, shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine.” 48 U. S. C. § 1424(a).

Conspicuously absent in this provision is any mention of federal diversity jurisdiction. The provision’s first clause follows the language of the federal-question statute, 28 U. S. C. § 1331, and the federal-question clause of Art. Ill, § 2. The second clause establishes original jurisdiction over local causes of action without regard to diversity of citizenship. The second clause is not applicable to this case, however, because in 1974 the Guam Legislature transferred jurisdiction of all cases arising under the laws of Guam from the District Court to the local courts. Thus, the only issue before us is whether the first clause, which grants federal-question jurisdiction to the District Court, see Guam v. Olsen, supra, at 199G200, also encompasses diversity jurisdiction. The Court of Appeals apparently reasoned that any cause of action with diverse parties “arises under the . . . laws ... of the United States,” since 28 U. S. C. § 1332, the diversity statute, is a law of the United States. By this logic, any cause of action with diverse parties under § 1332 would be within the scope of federal-question jurisdiction. But as we stated in Guam v. Olsen, “whatever may be the ambiguities of the phrase 'arising under [the Constitution, treaties, and laws of the United States] ’• — it does not embrace all civil cases that may present questions of federal law.” 431 U. S., at 202. By the same token, it does not embrace federal diversity jurisdiction. The short answer to the contention that diversity jurisdiction is merely a species of federal-question jurisdiction is that the Constitution itself distinguishes between these two types of jurisdictions. “The Constitution certainly contemplates these ... as distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over . . . the other .... The discrimination made between them, in the Constitution, is, we think, conclusive against their identity.” American Insurance Co. v. Canter, 1 Pet. 511, 545 (1828).

We also reject the notion that Congress, by extending the Privileges and Immunities Clauses of the Federal Constitution to Guam, 48 U. S. C. § 1421b (u), intended and implicitly authorized the Guam District Court to exercise federal diversity jurisdiction. 554 F. 2d, at 977. This Court has never held that the Privileges and Immunities Clauses prohibit Congress from withholding or restricting diversity jurisdiction, and there is nothing in the legislative history of § 1421b (u) to suggest that Congress intended that provision to have any effect on the Guam District Court’s original jurisdiction. Without support in the language or legislative history of the section, it is simply untenable to interpret § 1421b (u) either as conferring diversity jurisdiction by its own terms or as impliedly expanding the grant of original jurisdiction contained in § 1424 (a).

We recognize that Congress’ jurisdictional grant to the District Court of Guam is unique. All other federal district courts in the States and Territories exercise either diversity jurisdiction or concurrent original jurisdiction over many local causes of action. See 554 F. 2d, at 984 n. 18 (Sneed, J., dissenting). Whether or not this peculiar treatment of the Guam District Court is preferable or even wise, however, we are constrained by the principle that federal courts are courts of limited jurisdiction. Where, as here, Congress has clearly-established appropriate limitations on the District Court's original jurisdiction, we are compelled to respect those limits.

The petition for a writ of certiorari is granted, and the decision of the Court of Appeals is reversed.

So ordered.

       The District Court certified its interlocutory decision for immediate appeal under 28 U. S. C. § 1292 (b).

       We are, therefore, not faced with the question of what jurisdictional limits Congress may place upon federal district courts established under Art. III. Congress’ broad power over Territories under Art. IV is, of course, well established. See, e. g., Binns v. United States, 194 U. S. 486 (1904).

       Court Reorganization Act of 1974, Guam Pub. L. 12-85, § 55. The Court of Appeals for the Ninth Circuit has held that the jurisdiction of the local court under the Court Reorganization Act is exclusive and not concurrent with the Guam District Court. Agana Bay Dev. Co. (Hong Kong) v. Supreme Court of Guam, 529 F. 2d 952, 955 n. 4 (1976). As in Guam v. Olsen, 431 U. S., at 197 n. 3, that holding is not at issue in this case.

       Indeed, we have never held that the Privileges and Immunities Clauses of Art. IV, § 2, cl. 1, and the Fourteenth Amendment restrict congressional — as opposed to state — action.

       In fact, the legislative history of § 1421b (u) reveals that Congress’ intent in extending the Privileges and Immunities Clauses to Guam was “to limit the power of the territorial legislature rather than affect the jurisdiction of the district court. . . .” 554 F. 2d, at 984 n. 17 (Sneed, J., dissenting). There is limited support in the legislative history for the view that Congress was also concerned with the ability of citizens “to appeal in proper cases to the national courts . . . S. Rep. No. 216, 90th Cong., 1st Sess., 12 (1967) (letter of Feb. 19, 1967, from Assistant Secretary of Interior Harry R. Anderson to Senator Henry M. Jackson, Chairman of Committee on Interior and Insular Affairs) (emphasis added); see also H. R. Rep. No. 1521, 90th Cong., 2d Sess., 14 (1968). It is doubtful that this one statement could serve as a sufficient basis for concluding that Congress impliedly amended its jurisdictional grant to the Guam District Court through the oblique mechanism of the Privileges and Immunities Clauses. But even if it could, the jurisdictional grant at issue here does not deny Guam litigants “access to Art. Ill courts for appellate review of local-court decisions . . . .” Guam v. Olsen, 431 U. S., at 204. Only the limitation on the District Court’s original jurisdiction under the first clause of § 1424 (a), as quoted supra, is at issue here, and there is nothing in the legislative history of § 1421b, (u) to suggest that Congress intended to alter the plain language of that jurisdictional grant.