source: Caselaw Access Project

author: Justice Ginsburg

license: Public Domain

text:
    WACHOVIA BANK, NATIONAL ASSOCIATION v. SCHMIDT et al.
    No. 04-1186.
    Argued November 28, 2005
    Decided January 17, 2006

      Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the case.

      Andrew L. Frey argued the cause for petitioner. With him on the briefs were Charles A. Rothfeld, Evan M. Tager, and Robert W. Fuller III

      Sri Srinivasan argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Michael S. Raab, Julie L. Williams, Daniel R Stipano, and Douglas B. Jordan.

      James R. Gilreath argued the cause for respondents. With him on the brief was John P. Freeman.

      Briefs of amici curiae urging reversal were filed for the American Bankers Association by Gregory F. Taylor; for the Clearing House Association L. L. C. by David B. Tulchin and Michael M. Wiseman; and for JPMorgan Chase Bank, N. A., by Carter G. Phillips, Eric A. Shumsky, and Bradley J Johnson.

   Justice Ginsburg

delivered the opinion of the Court.

This case concerns the citizenship, for purposes of federal-court diversity jurisdiction, of national banks, i. e., corporate entities chartered not by any State, but by the Comptroller of the Currency of the U. S. Treasury. Congress empowered federal district courts to adjudicate civil actions between “citizens of different States” where the amount in controversy exceeds $75,000. 28 U. S. C. § 1332(a)(1). A business organized as a corporation, for diversity jurisdiction purposes, is “deemed to be a citizen of any State by which it has been incorporated” and, since 1958, also “of the State where it has its principal place of business.” § 1332(c)(1). State banks, usually chartered as corporate bodies by a particular State, ordinarily fit comfortably within this prescription. Federally chartered national banks do not, for they are not incorporated by “any State.” For diversity jurisdiction purposes, therefore, Congress has discretely provided that national banks “shall ... be deémed citizens of the States in which they are respectively located.” § 1348.

The question presented turns on the meaning, in § 1348’s context, of the word “located.” Does it signal, as the petitioning national bank and the United States, as amicus curiae, urge, that the bank’s citizenship is determined by the place designated in the bank’s articles of association as the location of its main office? Or does it mean, in addition, as respondents urge and the Court of Appeals held, that a national bank is a citizen of every State in which it maintains a branch?

Recognizing that “located” is not a word of “enduring rigidity,” Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35, 44 (1977), but one that gains its precise meaning from context, we hold that a national bank, for § 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located. Were we to hold, as the Court of Appeals did, that a national bank is additionally a citizen of every State in which it has established a branch, the access of a federally chartered bank to a federal forum would be drastically curtailed in comparison to the access afforded state banks and other state-incorporated entities. Congress, we are satisfied, created no such anomaly.

I

Petitioner Wachovia Bank, National Association (Wacho-via), is a national banking association with its designated main office in Charlotte, North Carolina. Wachovia operates branch offices in many States, including South Carolina.

The litigation before us commenced when plaintiff-respondent Daniel G. Schmidt III and others, citizens of South Carolina, sued Wachovia in a South Carolina state court for fraudulently inducing them to participate in an illegitimate tax shelter. Shortly thereafter, Wachovia filed a petition in the United States District Court for the District of South Carolina, seeking to compel arbitration of the dispute. As the sole basis for federal-court jurisdiction, Wachovia alleged the parties’ diverse citizenship. See 28 U. S. C. § 1332. The District Court denied Wachovia’s petition on the merits; neither the parties nor the court questioned the existence of federal subject-matter jurisdiction. On appeal, a divided Fourth Circuit panel determined that the District Court lacked diversity jurisdiction over the action; it therefore vacated the judgment and instructed the District Court to dismiss the case.

The Court of Appeals’ majority observed that Wachovia’s citizenship for diversity purposes is controlled by §1348, which provides that “national banking associations” are “deemed citizens of the States in which they are respectively located.” As the panel majority read §1348, Wachovia is “located” in, and is therefore a “citizen” of, every State in which it maintains a branch office. Thus Wachovia’s branch operations in South Carolina, in the majority’s view, rendered the bank a citizen of South Carolina. Given the South Carolina citizenship of the opposing parties, the majority concluded that the matter could not be adjudicated in federal court. 388 F. 3d 414, 432 (CA4 2004).

Circuit Judge King dissented. He read § 1348 and its statutory precursors to provide national banks with “the same access to federal courts as that accorded other banks and corporations.” Id., at 434. On his reading, Wachovia is a citizen only of North Carolina, the State in which its main office is located, not of every State in which it maintains a branch office; accordingly, he concluded, Wachovia’s petition qualified for federal-court adjudication.

We granted certiorari to resolve the disagreement among Courts of Appeals on the meaning of § 1348. 545 U. S. 1113 (2005). Compare Horton v. Bank One, N. A., 387 F. 3d 426, 429, 431 (CA5 2004) (for § 1348 purposes, “a national bank is not ‘located’ in, and thus [is] not a citizen of, every state in which it has a branch”; rather, the provision retains “jurisdictional parity for national banks vis-a-vis state banks and corporations”), and Firstar Bank, N. A. v. Faul, 253 F. 3d 982, 993-994 (C A7 2001) (same), with 388 F. 3d, at 432 (§ 1348 renders national bank a citizen, not only of the State in which its main office is located, but also of every State in which it has branch operations), and World Trade Center Properties, LLC v. Hartford Fire Ins. Co., 345 F. 3d 154, 161 (CA2 2003) (dictum) (same).

II

When Congress first authorized national banks in 1863, it specified that any “suits, actions, and proceedings by and against [them could] be had” in federal court. See Act of Feb. 25, 1863, § 59,12 Stat. 681. National banks thus could “sue and be sued in the federal district and circuit courts solely because they were national banks, without regard to diversity, amount in controversy or the existence of a federal question in the usual sense.” Mercantile Nat. Bank at Dallas v. Langdeau, 371 U. S. 555, 565-566 (1963). State banks, however, like other state-incorporated entities, could initiate actions in federal court only on the basis of diversity of citizenship or the existence of a federal question. See Petri v. Commercial Nat. Bank of Chicago, 142 U. S. 644, 648-649 (1892).

Congress ended national banks’ automatic qualification for federal jurisdiction in 1882. An enactment that year provided in relevant part:

“[T]he jurisdiction for suits hereafter brought by or against any association established under any law providing for national-banking associations ... shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national-banking associations may be doing business when such suits may be begun[.]” Act of July 12, 1882, §4, 22 Stat. 163.

Under this measure, national banks could no longer invoke federal-court jurisdiction solely “on the ground of their Federal origin,” Petri, 142 U. S., at 649; instead, for federal jurisdictional purposes, Congress placed national banks “on the same footing as the banks of the state where they were located,” Leather Manufacturers’ Bank v. Cooper, 120 U. S. 778, 780 (1887).

In 1887 revisions to prescriptions on federal jurisdiction, Congress replaced the 1882 provision on jurisdiction over national banks and first used the “located” language today contained in § 1348. The 1887 provision stated in relevant part:

“[A]ll national banking associations established under the laws of the. United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.” Act of Mar. 3, 1887, §4, 24 Stat. 554-555 (emphasis added).

Like its 1882 predecessor, the 1887 Act “sought to limit. . . the access of national banks to, and their suability in, the federal courts to the same. extent to which non-national banks [were] so limited.” Langdeau, 371 U. S., at 565-566.

In the Judicial Code of 1911, Congress combined two formerly discrete provisions on proceedings involving national banks, but retained without alteration the clause deeming national banks to be “citizens of the States in which they are respectively located.” Act of Mar. 3, 1911, §24 (Sixteenth), 36 Stat. 1091-1093. Finally, as part of the 1948 Judicial Code revision, Congress enacted § 1348 in its current form. Act of June 25,1948,62 Stat. 933. The provision now reads:

“The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter.
“All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” 28 U.S.C. §1348.

Ill

The Fourth Circuit panel majority advanced three principal reasons for deciding that Wachovia is “located” in, and therefore a “citizen” of, every State in which it maintains a branch office. First, consulting dictionaries, the Court of Appeals observed that “[i]n ordinary parlance” the term “located” refers to “physical presence in a place.” 388 F. 3d, at 416-417 (internal quotation marks omitted). Banks have a physical presence, the Fourth Circuit stated, wherever they operate branches. Id., at 417. Next, the court noted, “Section 1348 uses two distinct terms to refer to the presence of a banking association: ‘established’ and ‘located.’” Id., at 419. “To give independent meaning” to each word, the court said, “it is most reasonable to understand the place where a national bank is ‘established’ torrefer to a bank’s charter location, and to understand the place where it is ‘located’ to refer to the place or places where it has a physical presence.” Ibid. Finally, the Court of Appeals stressed that in Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35 (1977), this Court interpreted the term “located” in the former venue statute for national banks, see 12 U. S. C. § 94 (1976 ed.), as encompassing any county in which a bank maintains a branch office. 388 F. 3d, at 419-420. Reasoning that “the jurisdiction and venue statutes pertain to the same subject matter, namely the amenability of national banking associations to suit in federal court,” the panel majority concluded that, “under the in pari materia canon[,] the two statutes should be interpreted” consistently. Id., at 422.

IV

None of the Court of Appeals’ rationales persuade us to read § 1348 to attribute to a national bank, for diversity jurisdiction purposes, the citizenship of each State in which the bank has established branch operations. First, the term “located,” as it appears in the National Bank Act, has no fixed, plain meaning. In some provisions, the word unquestionably refers to a single place: the site of the banking association’s designated main office. See, e. g., 12 U. S. C. § 52 (national bank’s capital stock certificates must state “the name and location of the association”); § 55 (requiring notice of sale of capital stock “in a newspaper of the city or town in which the bank is located”); §75 (bank’s regular annual shareholders’ meeting shall be rescheduled when it “falls on a legal holiday in the State in which the bank is located”); § 182 (requiring publication of a notice of dissolution “in the city or town in which the association is located”). In other provisions, “located” apparently refers to or includes branch offices. See, e.g., §36(j) (defining “branch” to include “any branch place of business located in any State”); §85 (limiting interest rate charged by national bank to “rate allowed by the laws of the State, Territory, or District where the bank is located”) (construed in OCC Interpretive Letter No. 822 (Feb. 17,1998), [1997-1998 Transfer Binder] CCH Fed. Banking L. Rep. ¶ 81-265, pp. 90, 256-90, 257); 12 U. S. C. §92 (permitting national bank to act as insurance agent in certain circumstances when bank is “located and doing business in any place the population of which does not exceed five thousand inhabitants”) (construed in 12 CFR §7.1001 (2005)) Recognizing the controlling significance of context, we stated in Bougas, regarding a venue provision for national banks: “There is no enduring rigidity about the word ‘located.’” 434 U. S., at 44.

Second, Congress may well have comprehended the words “located” and “established,” as used in §1348, not as contrasting, but as synonymous or alternative terms. When Congress enacted §1348’s statutory predecessors and then §1348 itself, a national bank was almost always “located” only in the State in which it was “established,” under any of the proffered definitions of the two words, for, with rare exceptions, a national bank could not operate a branch outside its home State. Not until 1994 did Congress provide broad authorization for national banks to establish branches across state lines. See supra, at 307-308, n. 2. Congress’ use of the two terms may be best explained as a coincidence of statutory codification. Deriving from separate provisions enacted in different years, the word “established” appearing in the first paragraph of § 1348 and the word “located” appearing in the second paragraph were placed in the same section in the 1911 revision of the Judicial Code. See supra, at 311-312, n. 6. The codifying Act explicitly stated that “so far as [its provisions were] substantially the same as existing statutes,” they should “be construed as continuations thereof, and not as new enactments.” Act of Mar. 3, 1911, §294, 36 Stat. 1167; see Federal Intermediate Credit Bank of Columbia v. Mitchell, 277 U. S. 213, 216 (1928) (1911 Act “was in substance a reenactment of the earlier provisions in respect of . . . jurisdiction”). In this light, it is unsurprising that, in 1947, this Court, referring to a national bank’s citizenship under the 1911 Act, used the terms “located” and “established” as alternatives. See Cope v. Anderson, 331 U. S. 461, 467 (“For jurisdictional purposes, a national bank is a ‘citizen’ of the state in which it is established or located[.]”).

Finally, Bougas does not control the meaning of §1348. In that case, we construed a now-repealed venue provision, which stated that actions against national banking associations could be filed “in any State, county, or municipal court in the county or city in which said association [was] located.” 434 U. S., at 35-36 (quoting 12 U. S. C. §94 (1976 ed.)). We held that, for purposes of this provision, a national bank was located, and venue was therefore proper, in any county or city where the bank maintained a branch office. 434 U. S., at 44-45. True, under the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read “ ‘as if they were one law.’ ” Erlenbaugh v. United States, 409 U. S. 239, 243 (1972) (quoting United States v. Freeman, 3 How. 556, 564 (1845)). But venue and subject-matter jurisdiction are not concepts of the same order. Venue is largely a matter of litigational convenience; accordingly, it is waived if not timely raised. See, e. g., Heckler v. Ringer, 466 U. S. 602, 638, n. 26 (1984) (Stevens, J., concurring in judgment in part and dissenting in part); Fed. Rule Civ. Proc. 12(h)(1). Subject-matter jurisdiction, on the other hand, concerns a court’s competence to adjudicate a particular category of cases; a matter far weightier than venue, subject-matter jurisdiction must be considered by the court on its own motion, even if no party raises an objection. See, e.g., Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884); Fed. Rule Civ. Proc. 12(h)(3).

Cognizant that venue “is primarily a matter of choosing a convenient forum,” Leroy v. Great Western United Corp., 443 U. S. 173, 180 (1979), the Court in Bougas stressed that its “interpretation of [the former] § 94 [would] not inconvenience the bank or unfairly burden it with distant litigation,” 434 U. S., at 44, n. 10. Subject-matter jurisdiction, however, does not entail an assessment of convenience. It poses a “whether,” not a “where” question: Has the Legislature empowered the court to hear cases of a certain genre? See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, 168 (1939) (“This basic difference between the court’s power and the litigant’s convenience is historic in the federal courts.”). Thus, the considerations that account for our decision in Bougas are inapplicable to §1348, a prescription governing subject-matter jurisdiction, and the Court of Appeals erred in interpreting § 1348 in pari materia with the former § 94.

Significantly, this Court’s reading of the venue provision in Bougas effectively aligned the treatment of national banks for venue purposes with the treatment of state banks and corporations. For venue in suits against state banks and other state-created corporations typically lies wherever those entities have business establishments. See 19 C. J. S., Corporations § 717(d), p. 374, n. 30 (1990) (under typical state venue statutes, “[v]enue in action against domestic corporation can be laid in any county where corporation maintains branch office”). By contrast, the Court of Appeals’ decision in the instant case severely constricts national banks’ access to diversity jurisdiction as compared to the access available to corporations generally. For purposes of diversity, a corporation surely is not deemed a citizen of every State in which it maintains a business establishment. See Pennsylvania R. Co. v, St. Louis, A. & T. H. R. Co., 118 U. S. 290, 295-296 (1886). Rather, under 28 U. S. C. § 1332(c)(1), a corporation is “deemed to be a citizen” only of “any State by which it has been incorporated” and “of the State where it has its principal place of business.” Accordingly, while corporations ordinarily rank as citizens of at most 2 States, Wachovia, under the Court of Appeals’ novel citizenship rule, would be a citizen of 16 States. See FDIC Institution Directory, available at http://www2.fdic.gov/idasp/main.asp. Bougas does not call for this anomalous result.

V

To summarize, “located,” as its appearances in the banking laws reveal, see supra, at 313-314, is a chameleon word; its meaning depends on the context in and purpose for which it is used.

In the context of venue, “located” may refer to multiple places, for a venue prescription, e. g., the current and former 12 U. S. C. § 94, presupposes subject-matter jurisdiction and simply delineates where within a given judicial system a case may be maintained. See, e. g., 28 U. S. C. § 1391(c) (for venue purposes, “a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced”).

In contrast, in § 1348, “located” appears in a prescription governing not venue but federal-court subject-matter jurisdiction. Concerning access to the federal court system, § 1348 deems national banks “citizens of the States in which they are respectively located.” There is no reason to suppose Congress used those words to effect a radical departure from the norm. An individual who resides in more than one State is regarded, for purposes of federal subject-matter (diversity) jurisdiction, as a citizen of but one State. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 828 (1989) (an individual is deemed a citizen of the State of her domicil); Williamson v. Osenton, 232 U. S. 619, 625 (1914) (domicil is the “technically preeminent headquarters” of a person; “[i]n its nature it is one”). Similarly, a corporation’s citizenship derives, for diversity jurisdiction purposes, from its State of incorporation and principal place of business. § 1332(c)(1). It is not deemed a citizen of every State in which it conducts business or is otherwise amenable to personal jurisdiction. Reading § 1348 in this context, one would sensibly “locate” a national bank for the very same purpose, i. e., qualification for diversity jurisdiction, in the State designated in its articles of association as its main office.

Treating venue and subject-matter jurisdiction prescriptions as in pari materia, 388 F. 3d, at 422-423, the Court of Appeals majority overlooked the discrete offices of those concepts. See supra, at 315-316; cf. Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) (“The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.”). The resulting Fourth Circuit decision rendered national banks singularly disfavored corporate bodies with regard to their access to federal courts. The language of § 1348 does not mandate that incongruous outcome, nor does this Court’s precedent.

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

       A national bank, on formation, must designate, in its organization certificate and articles of association, the “place where its operations of discount and deposit are to be carried on.” 12 U. S. C. §22 (Second); see §21; Office of the Comptroller of the Currency, Instructions— Articles of Association, Specific Requirements ¶ 12, available at http:// www.occ.treas.gov/corpbook/forms/articles-conv.doc. (All Internet materials as visited Jan. 13, 2006, and included in Clerk of Court’s case file.) The place so designated serves as the bank’s “main office.” Changes in the location of that office are effected by amendment to the bank’s articles of association. See 12 U. S. C. §§ 21a, 30(b); 12 CFR § 5.40(d)(2)(ii) (2005). The State in which the main office is located qualifies as the bank’s “home State” under the banking laws. 12 U. S. C. § 36(g)(3)(B).

       National banks originally lacked authority to operate branch offices. Act of Feb. 25, 1863, §11, 12 Stat. 668. In 1865, Congress enacted an exception permitting a state bank that converted to a national bank to retain its pre-existing branches. Act of Mar. 3, 1865, § 7, 13 Stat. 484. Congress authorized limited branch operations in the bank’s home State in 1927 and 1933. McFadden Act (Branch Banks), 1927, §7(c), 44 Stat. 1228; Glass-Steagall Act, 1933, § 23,48 Stat. 189-190. These Acts, like the 1865 enactment, allowed interstate branching only under narrow “grandfather” provisions. McFadden Act, §7(a)-(b), 44 Stat. 1228; see Girard Bank v. Board of Governors of Fed. Reserve System, 748 F. 2d 838, 840 (CA3 1984) (observing that only two national banks had “grandfathered” interstate branches). Not until 1994 did Congress grant national banks broad authority to establish branch offices across state lines. See Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, § 101, 108 Stat. 2339. See generally J. Macey, G. Miller, & R. Carnell, Banking Law and Regulation 18 — 19, 23, 32-33 (3d ed. 2001).

       Wachovia unsuccessfully moved for rehearing en banc. Six judges voted to grant the rehearing petition, three voted to deny it, and four recused themselves. Thus the petition failed to gamer the required majority of the Circuit’s 13 active judges. No. 03-2061 (CA4, Jan. 28, 2005), App. to Pet. for Cert. 57a-58a

       The term “established under” did appear in the 1882 and 1887 formulations, in both texts as synonymous with the term “organized under.” In neither measure is the word used in a locational sense.

       Earlier, in 1888, Congress had revised the 1887 prescription by adding as a separate paragraph this caveat: “The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.” Act of Aug. 13, 1888, §4, 25 Stat. 436.

       In full, the 1911 text stated:
      “The district courts shall have original jurisdiction . . . [o]f all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title ‘National Banks,’ Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located.” 36 Stat. 1091-1093.
      The first sentence of this formulation merged the 1888 caveat with text, including the word “established,” originally contained in the Act of Dec. 1, 1873, § 629 (Tenth to Eleventh), 18 Stat. 111. The second sentence, including the word “located,” derives from the 1887 formulation.

       The Court of Appeals did not overlook these nonuniform uses of the word “located” in various provisions of the National Bank Act. See 388 F. 3d 414, 425 (CA4 2004). Nevertheless, it declared that, in § 1348, “located” unambiguously means “physically present.” Ibid, (internal quotation marks omitted). The court did not say what facilities other than branch offices, for example, storage sites or even automated teller machines, would suffice to establish a bank’s physical presence. Cf Tr. of Oral Arg. 36-37 (counsel for respondents stated that an ATM, although an arguable question, probably would suffice to locate a bank in a State for § 1348 purposes).

       Context also matters in assigning meaning to the word “established.” See, e. g., Convention Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains, S. Treaty Doc. No. 107-19, Art. 5, pp. 8-9 (2002) (“For the purposes of this Convention, the term “permanent establishment’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on ....”). Given the character of the proceedings covered by the first paragraph of § 1348, see supra, at 312, one might read “established” as referring to the bank’s main office as set forth in its articles of association. Other readings mentioned in Court of Appeals opinions are the bank’s principal place of business and the place listed in the bank’s organization certificate. See Horton v. Bank One, N. A., 387 F. 3d 426, 434 (CA5 2004); Firstar Bank, N. A. v. Faul, 253 F. 3d 982, 992 (CA7 2001). Because this issue is not presented by the parties or necessary to today’s decision, we express no opinion on it. Cf. ibid.

       To achieve complete parity with state banks and other state-incorporated entities, a national banking association would have to be deemed a citizen of both the State of its main office and the State of its principal place of business. See Horton, 387 F. 3d, at 431, and n. 26; Firstar Bank, N. A, 253 F 3d, at 993-994. Congress has prescribed that a corporation “shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. § 1332(c)(1) (emphasis added). The counterpart provision for national banking associations, § 1348, however, does not refer to “principal place of business”; it simply deems such associations “citizens of the States in which they are respectively located.” The absence of a “principal place of business” reference in § 1348 may be of scant practical significance for, in almost every case, as in this one, the location of a national bank’s main office and of its principal place of business coincide.


author: Justice O’Connor

text:
    AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND et al.
    No. 04-1144.
    Argued November 30, 2005
    Decided January 18, 2006

      O’Connor, J., delivered the opinion for a unanimous Court.

      Kelly A. Ayotte, Attorney General of New Hampshire, petitioner, argued the cause pro se. With her on the briefs were Michael A. Delaney, Deputy Attorney General, Daniel J. Mullen, Associate Attorney General, and Laura E. B. Lombardi and Anthony I. Blenkinsop, Assistant Attorneys General.

      Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Kan-non K. Shanmugam, and Marleigh D. Dover.

      Jennifer Dalven argued the cause for respondents. With her on the briefs were Steven R. Shapiro, Louise Melting, Talcott Camp, Corinne Schiff, Brigitte Amiri, Diana Kas-dan, Lawrence A. Vogelman, and Dara Klassel.

      Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney Genéral of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Bwrbach, Deputy Attorney General, R. Ted Cruz, Solicitor General, and Joel L. Thollander, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Mike Beebe of Arkansas, John W Sutlers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Michael A Cox of Michigan, Jim Hood of Mississippi, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, Judith Williams Jagdmann of Virginia, and Patrick J. Crank of Wyoming; for the American Association of Pro Life Obstetricians and Gynecologists et al. by Steven H. Aden; for the American Center for Law and Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, and Walter M. Weber; for the Association of American Physicians & Surgeons et al. by Dorinda C. Bordlee, Nikolas T. Nikas, and James L. Hirsen; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for the Family Research Council, Inc., et al. by Robert P. George; for the National'Legal Foundation by Barry C. Hodge; for New Hampshire Legislators by Teresa Stanton Collett; for the Rutherford Institute by John W. Whitehead and James J. Knicely; for the Thomas More Society by Paul Benjamin Linton and Thomas Brejcha; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Michael F. Moses; for University Faculty for Life by Richard G. Wilkins; for Alaska Lieutenant Governor Loren Leman et al. by Kevin Gilbert Clark-son; for Minnesota Governor Tim Pawlenty et al. by Ms. Collett; for Har-lon Reeves by Kelly Shackelford; for Margie Riley et al. by James Joseph

        Lynch, Jr.; for New Hampshire State Representative Kathleen Souza et al. by Clarke D. Forsythe and Denise M. Burke; and for James P. Weiers et al. by Len L. Munsil.

      Briefs of amici curiae urging affirmance were filed for the American College of Obstetricians and Gynecologists et al. by A Stephen Hut, Jr., and Kimberly A. Parker; for the Center for Adolescent Health & the Law et al. by Elizabeth B. McCallum, Susan Frietsche, and David S. Cohen; for the Center for Reproductive Rights et al. by Sanford M. Cohen, Simon Heller, and Priscilla Smith; for the National Coalition Against Domestic Violence et al. by Maria T. Vullo and Julie Goldscheid; for Organizations Committed to Women’s Equality by Jennifer K Brown; for the Religious Coalition for Reproductive Choice et al. by Caroline M. Brown; for New Hampshire Governor John H. Lynch by Katherine M. Hanna; and for New Hampshire State Representative Terie Norelli et al. by Kenneth J. Barnes.

      Briefs of amici curiae were filed for the Horatio R. Storer Foundation, Inc., by James Bopp, Jr., and Thomas J. Marzen; for the Legal Defense for Unborn Children by Alan Ernest; for Liberty Counsel by Mathew D. Staver, Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister; for NARAL Pro-Choice America Foundation et al. by Elizabeth A Cavendish, James P. Joseph, and Leslie M. Hill; and for Maureen L. Curley et al. by Philip D. Moran.

   Justice O’Connor

delivered the opinion of the Court.

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.

I

A

In 2003, New Hampshire enacted the Parental Notification Prior to Abortion Act. N. H. Rev. Stat. Ann. §§ 132:24-132:28 (2005). The Act prohibits physicians from performing an abortion on a pregnant minor (or a woman for whom a guardian or conservator has been appointed) until 48 hours after written notice of the pending abortion is delivered to her parent or guardian. § 132:25(1). Notice may be delivered personally or by certified mail. §§ 132:25(11), (III). Violations of the Act are subject to criminal and civil penalties. § 132:27.

The Act allows for three circumstances in which a physician may perform an abortion without notifying the minor’s parent. First, notice is not required if “[t]he attending abortion provider certifies in the pregnant minor’s record that the abortion is necessary to prevent the minor’s death and there is insufficient time to provide the required notice/’ § 132:26(I)(a). Second, a person entitled to receive notice may -certify that he or she has already been notified. § 132:26(I)(b). Finally, a minor may petition a judge to authorize her physician to perform an abortion without parental notification. The judge must so authorize if he or she finds that the minor is mature and capable of giving informed consent, or that an abortion without notification is in the minor’s best interests. §132:26(11). These judicial bypass proceedings “shall be confidential and shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay,” and access to the courts “shall be afforded [to the] pregnant minor 24 hours a day, 7 days a week.” §§ 132:26(II)(b), (c). The trial and appellate courts must each rule on bypass petitions within seven days. Ibid.

The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification.

B

Respondents are Dr. Wayne Goldner, an obstetrician and gynecologist who has a private practice in Manchester, and three clinics that offer reproductive health services. All provide abortions for pregnant minors, and each anticipates having to provide emergency abortions for minors in the future. Before the Act took effect, respondents brought suit under 42 U. S. C. § 1983, alleging that the Act is unconstitutional because it fails “to allow a physician to provide a prompt abortion to a minor whose health would be endangered” by delays inherent in the Act. App. 10 (Complaint, ¶ 24). Respondents also challenged the adequacy of the Act’s life exception and of the judicial bypass’ confidentiality provision.

The District Court declared the Act unconstitutional, see 28 U. S. C. § 2201(a), and permanently enjoined its enforcement. It held, first, that the Act was invalid for failure “on its face [to] comply with the constitutional requirement that laws restricting a woman’s access to abortion must provide a health exception.” Planned Parenthood of Northern New Eng. v. Heed, 296 F. Supp. 2d 59, 65 (NH 2003). It also found that the Act’s judicial bypass would not operate expeditiously enough in medical emergencies. In the alternative, the District Court held the Act’s life exception unconstitutional because it requires physicians to certify with impossible precision that an abortion is “necessary” to avoid death, and fails to protect their good faith medical judgment.

The Court of Appeals for the First Circuit affirmed. Citing our decisions in Stenberg v. Carkart, 530 U. S. 914, 929-930 (2000), Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (1992) (plurality opinion), and Roe v. Wade, 410 U. S. 113, 164-165 (1973), it observed: “Complementing the general undue burden standard [for reviewing abortion regulations], the Supreme Court has also identified a specific and independent constitutional requirement that an abortion regulation must contain an exception for the preservation of the pregnant woman’s health.” Planned Parenthood of Northern New Eng. v. Heed, 390 F. 3d 53, 58 (2004). It went on to conclude that the Act is unconstitutional because it does not contain an explicit health exception, and its judicial bypass, along with other provisions of state law, is no substitute. The Court of Appeals further found the Act unconstitutional because, in its view, the life exception forces physicians to gamble with their patients’ lives by prohibiting them from performing an abortion without notification until they are certain that death is imminent, and is intolerably vague. Because the district and appellate courts permanently enjoined the Act’s enforcement on the basis of the above infirmities, neither reached respondents’ objection to the judicial bypass’ confidentiality provision.

We granted certiorari, 544 U. S. 1048 (2005), to decide whether the courts below erred in invalidating the Act in its entirety because it lacks an exception for the preservation of pregnant minors’ health. We now vacate and remand for the Court of Appeals to reconsider its choice of remedy.

M H-1

As the case comes to us, three propositions — two legal and one factual — are established. First, States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their “strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Hodgson v. Minnesota, 497 U. S. 417, 444-445 (1990) (opinion of Stevens, J.). Accordingly, we have long upheld state parental involvement statutes like the Act before us, and we cast no doubt on those holdings today. See, e. g., Lambert v. Wicklund, 520 U. S. 292 (1997) (per curiam); Casey, supra, at 899 (joint opinion); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 510-519 (1990); Hodgson, 497 U. S., at 461 (O’Connor, J., concurring in part and concurring in judgment in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and dissenting in part).

.Second, New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are “'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ” Casey, 505 U. S., at 879 (plurality opinion) (quoting Roe, 410 U. S., at 164-165); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 768-769 (1986); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 482-486 (1983) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 79 (1976).

Third, New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health. See 296 F. Supp. 2d, at 65, n. 4.

New Hampshire has maintained that in most if not all cases, the Act’s judicial bypass and the State’s “competing harms” statutes should protect both physician and patient when a minor needs an immediate abortion. See N. H. Rev. Stat. Ann. §627:3(1) (1996) (for criminal liability, “[cjonduct which the actor believes to be necessary to avoid harm to ... another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged”); §627:1 (similar for civil liability). But the District Court and Court of Appeals found neither of these provisions to protect minors’ health reliably in all emergencies. 296 F. Supp. 2d, at 65-66; 390 F. 3d, at 61-62. And New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. See Reply Brief for Petitioner 2, 8, 11; Tr. of Oral Arg. 6, 14.

III

We turn to the question of remedy: When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, see United States v. Raines, 362 U. S. 17, 20-22 (1960), or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U. S. 220, 227-229 (2005).

Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature’s work than is necessary, for we know that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion). It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.” Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289 (1921). Accordingly, the “normal rule” is that “partial, rather than facial, invalidation is the required course,” such that a “statute may ... be declared invalid to the extent that it reaches too far, but otherwise left intact.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); see also Tennessee v. Garner, 471 U. S. 1 (1985); United States v. Grace, 461 U. S. 171, 180-183 (1983).

Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewriting] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180-183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself. We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid.

Third, the touchstone for any decision about remedy is legislative intent, for a court cannot “use its remedial powers to circumvent the intent of the legislature.” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part); see also Dorchy v. Kansas, 264 U. S. 286, 289-290 (1924) (opinion for the Court by Brandéis, J.). After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally Booker, supra, at 227; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234. (1932); The Employers’ Liability Cases, 207 U. S. 463, 501 (1908); Allen v. Louisiana, 103 U. S. 80, 83-84 (1881); Trade-Mark Cases, 100 U. S. 82, 97-98 (1879). All the while, we are wary of legislatures who would rely on our intervention, for “[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside” to announce to whom the statute may be applied. United States v. Reese, 92 U. S. 214, 221 (1876). “This would, to some extent, substitute the judicial for the legislative department of the government.” Ibid.

In this case, the courts below chose the most blunt remedy — permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely. That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called “partial birth abortion” unless the procedure was necessary to save the pregnant woman’s life. We held Nebraska’s law unconstitutional because it lacked a health exception. 530 U. S., at 930 (lack of a health exception was an “independent reaso[n]” for finding the ban unconstitutional). But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.

In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. Respondents, too, recognize the possibility of a modest remedy: They pleaded for any relief “just and proper,” App. 13 (Complaint), and conceded at oral argument that carefully crafted injunctive relief may resolve this case, Tr. of Oral Arg. 38, 40. Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application.

There is some dispute as to whether New Hampshire’s legislature intended the statute to be susceptible to such a remedy. . New Hampshire notes that the Act contains a severability clause providing that “[i]f any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications.” § 132:28. Respondents, on the other hand, contend that New Hampshire legislators preferred no statute at all to a statute enjoined in the way we have described. Because this is an open question, we remand for the lower courts to determine legislative intent in the first instance.

> t — i

Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the Act’s life exception. We therefore need not pass on the lower courts’ alternative holding. Finally, if the Act does survive in part on remand, the Court of Appeals should address respondents’ separate objection to the judicial bypass’ confidentiality provision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Forty-four States, including New Hampshire, have parental involvement (that is, consent or notification) laws. Thirty-eight of those laws have explicit exceptions for health or medical emergencies. Ala Code §26-21-5 (1992); Alaska Stat. § 18.16.060 (2004); Ariz. Rev. Stat. Ann. §36-2152(G)(2) (West 2003); Ark. Code Ann. §§20-16-802(2), 20-16-805(1) (2005 Supp.); Cal. Health & Safety Code Ann. § 123450 (West 1996); Colo. Rev. Stat. §12-37.5-103(5) (2004); Del. Code Ann., Tit. 24, §§ 1782(d), 1787 (1997); Fla Stat. Ann. §§390.01114(2)(d), (3)(b) (West Supp. 2006); Ga Code Ann. §15-11-116 (2005); Idaho Code § 18-609A(1)(a)(v) (Lexis Cum. Supp. 2005); Ill. Comp. Stat., eh. 750, §70/10 (West 2004); Ind. Code § 16-34-2-4 (West 2004); Iowa Code §135L.3 (2005); Kan. Stat. Ann. § 65-6705(j)(1)(B) (2002); Ky. Rev. Stat. Ann. §§311.720, 311.732 (West Supp. 2005); La. Stat. Ann. §40:1299.35.12 (West Supp. 2005); Mass. Gen. Laws, ch. 112, §12S (West 2004); Mich. Comp. Laws Ann. §§ 722.902(b), 722.905 (West 2002); Miss. Code Ann. §41-41-57 (2005); Mont. Code Ann. §§50-20-203(5), 50-20-208 (2005); Neb. Rev. Stat. §71-6906(1) (2003); Nev. Rev. Stat. §442.255(1) (2003); N. J. Stat. Ann. §§9:17A-1.3, 9:17A-1.6 (West 2002); N. M. Stat. Ann. §30-5-1 (2004); N. C. Gen. Stat. Ann. §90-21.9 (Lexis 2003); N. D. Cent. Code Ann. §§14-02.1-03(1), 14-02.1-03.1(2) (Lexis 2004); Ohio Rev. Code Ann. § 2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63, §1-740.2(B) (West Cum. Supp. 2006); 18 Pa. Cons. Stat. §§3203, 3206 (2002); R. I. Gen. Laws §23-4.7-4 (1996); S. C. Code Ann. §44-41-30(0(1) (2002); 2005 S. D. Laws p. 189; Tenn. Code Ann. § 37-10-305 (2005); Tex. Occ. Code Ann. § 164.052(a)(19) (West Cum. Supp. 2005), Tex. S. B. 419, § 1.42(a)(19) (2005) (enrolled); Utah Code Ann. §§76-7-301(2), 76-7-305 (Lexis Supp. 2005); Va. Code Ann. § 18.2-76 (2004); W. Va. Code § 16-2F-5 (Lexis 2001); Wis. Stat. §48.375 (2003-2004). Two States give physicians sufficient discretion to perform an abortion to protect minors’ health. Me. Rev. Stat. Ann., Tit. 22, §1597-A (2004); Md. Health Code Ann. §20-103 (2005). Four, including New Hampshire, make no exception for minors’ health in an emergency. N. H. Stat. § 132:26 (2005); Minn. Stat. § 144.343 (2004); Mo. Rev. Stat. §188.028 (2000); Wyo. Stat. Ann. §35-6-118 (2003).

       It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them “to exercise their rights wisely.” Hodgson, 497 U. S., at 444 (opinion of Stevens, J.); see id., at 450-451, and n. 36 (opinion of the Court) (holding unconstitutional a statute requiring notification of both parents, and observing that “the most common reason” young women did not notify a second parent was that the second parent “was a child- or spouse-batterer, and notification would have provoked further abuse” (citation omitted)).- See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect).


author: Justice Kennedy Justice Breyer,

text:
    RICE, WARDEN, et al. v. COLLINS
    No. 04-52.
    Argued December 5, 2005
    Decided January 18, 2006

      Kennedy, J., delivered the opinion for a unanimous Court. Bkeyer, J., filed a concurring opinion, in which Souter, J., joined, post, p. 342.

      Bill Lockyer, Attorney General of California, argued the cause for petitioners. With him on the briefs were Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, and Donald E. De Nicola, Deputy Solicitor General.

      Mark R. Drozdowski, by appointment of the Court, post, p. 807, argued the cause for respondent. With him on the brief were Maria E. Stratton and Karyn H. Bucur.

      Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Brian Sandoval, Attorney General of Nevada, David K. Neidert, Senior Deputy Attorney General, by Christopher L. Morano, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, John W. Suthers of Colorado, Lawrence G. Wasden of Idaho, Tom Miller of Iowa, Thomas F. Reilly of Massachusetts, Mike Cox of Michigan, Jim Petro of Ohio, Hardy Meyers of Oregon, Henry D. McMaster of South Carolina, Larry Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Rob McKenna of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

   Justice Kennedy

delivered the opinion of the Court.

Concerned that, in this habeas corpus case, a federal court set aside reasonable state-court determinations of fact in favor of its own debatable interpretation of the record, we granted certiorari. Our review confirms that the Court of Appeals for the Ninth Circuit erred, misapplying settled rules that limit its role and authority.

I

After a 4-day trial in the Superior Court of California for the County of Los Angeles, á jury convicted Steven Martell Collins on one count of possessing cocaine. The conviction was all the more serious because it subjected him to California’s three strikes rule for sentencing. The question at issue in this federal habeas corpus action, however, is the California courts’ rejection of Collins’ argument that the prosecutor struck a young, African-American woman, Juror 16, from the panel on account of her race. A second African-American juror was also the subject of a peremptory strike, and although Collins challenged that strike in the trial court, on appeal he objected only to the excusal of Juror 16.

Even prior to this Court’s decision in Batson v. Kentucky, 476 U. S. 79 (1986), California courts barred peremptory challenges to jurors based on race. People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978). Although our recent decision in Johnson v. California, 545 U. S. 162 (2005), disapproved of the manner in which Wheeler and Batson were implemented in some California cases, the state courts in this case used the correct analytical framework in considering and ruling upon the objection to the prosecutorial strike.

As race-neutral explanations for striking Juror 16, the prosecutor said that Juror 16 had rolled her eyes in response to a question from the court; that Juror 16 was young and might be too tolerant of a drug crime; and that Juror 16 was single and lacked ties to the community. A further, more troubling part of the prosecutor’s unorganized explanation was her reference to Juror 16’s gender. The trial court, correctly, disallowed any reliance on that ground. The trial court, furthermore, which had the benefit of observing the prosecutor firsthand over the course of the proceedings, rejected Collins’ challenge.

“With regard to 016, the court, frankly, did not observe the demeanor of Ms. 016 that was complained of by the District Attorney; however, Ms. 016 was a youthful person, as was [a white male juror the prosecutor also dismissed by peremptory challenge]. And one or more prospective jurors also.
“The Court is prepared to give the District Attorney the benefit of the doubt as to Ms. 016.” 2 App. 14-16.

The California Court of Appeal upheld the conviction and the trial court’s ruling on the peremptory challenge. People v. Collins, No. B106989 (Dec. 12, 1997), App. H to Pet. for Cert. 112-117. In its view, youth was a legitimate reason to exercise a peremptory challenge; and, even if it were not, Juror 16’s demeanor also supported the strike. Id., at 116. According to its review of the record, nothing suggested the trial court failed to conduct a searching inquiry of the prosecutor’s reasons for striking Juror 16. Id., at 116-117. The appeals court thus upheld the trial court’s ultimate conclusion to credit the prosecutor. Ibid. Without comment, the Supreme Court of California denied Collins’ petition for review. App. F, id., at 96.

Collins sought collateral relief on this claim in federal court. The United States District Court for the Central District of California dismissed with prejudice Collins’ petition for a writ of habeas corpus. App. D, id., at 91. A divided panel of the Court of Appeals for the Ninth Circuit reversed and remanded with instructions to grant the petition. 348 F. 3d 1082 (2003), amended and superseded by 365 F. 3d 667 (2004). Noting that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governed Collins’ petition, the panel majority concluded that it was an unreasonable factual determination to credit the prosecutor’s race-neutral reasons for striking Juror 16. Id., at 679. Judge Hall dissented, id,, at 687-691; and later, over the dissent of five judges, the Court of Appeals declined to rehear the case en banc, id., at 670-673. Though it recited the proper standard of review, the panel majority improperly substituted its evaluation of the record for that of the state trial court. We granted the petition for certiorari, 545 U. S. 1151 (2005), and now reverse.

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U. S., at 96-97. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id., at 97-98. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U. S. 765, 767-768 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768.

On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U. S. 352, 364-366 (1991) (plurality opinion) (holding that evaluation of a prosecutor’s credibility “lies ‘peculiarly within a trial judge’s province’ ”). Under AEDPA, however, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. § 2254(d)(2). Thus, a federal habeas court can only grant Collins’ petition if it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by “clear and convincing evidence.” § 2254(e)(1). See Miller-El v. Dretke, 545 U. S. 231, 240 (2005). Although the Ninth Circuit assumed § 2254(e)(1)’s presumption applied in this case, 365 F. 3d, at 677, the parties disagree about whether and when it does. We need not address that question. Even assuming, argu-endo, that only § 2254(d)(2) applied in this proceeding, the state-court decision was not an unreasonable determination of the facts in light of the evidence presented in the state court.

Because the California Court of Appeal accepted the trial court’s credibility finding, the panel majority inquired whether the appellate court made an unreasonable factual determination. See id., at 682. The panel majority’s analysis and conclusions, however, depended entirely on its view of the trial court’s credibility holding. The panel majority found no error in the trial court’s proceedings or rulings in the first two steps of the Batson inquiry. 365 F. 3d, at 677-678. It disagreed, however, with the trial court’s conclusions on the third step, holding that it was unreasonable to accept the prosecutor’s explanation that Juror 16 was excused on account of her youth and her demeanor. Id., at 678-687. We conclude the Ninth Circuit erred, for the trial court’s credibility determination was not unreasonable.

Noting that the trial court had not witnessed Juror 16’s purported eye rolling, the panel majority concluded that no reasonable factfinder could have accepted the prosecutor’s rendition of the alleged incident because the prosecutor’s conduct completely undermined her credibility. Id., at 683. Having before it only the trial court record, the Court of Appeals majority drew this conclusion based on three considerations: first, the prosecutor’s erroneous statement concerning another prospective African-American juror’s age; second, the prosecutor’s improper attempt to use gender as a basis for exclusion; and third, the majority’s skepticism toward the prosecutor’s explanation that she struck Juror 16 in part because of her youth and lack of ties to the community. Id., at 683-684.

The first reason the panel majority noted for rejecting the trial court’s credibility finding pertained not to Juror 16, the subject of Collins’ claim on appeal, but to another prospective African-American juror, Juror 19. The prosecutor referred to Juror 19 as “young” even though she was a grandmother. This reference to youth took place during a discussion about three prospective jurors, Jurors 6, 16, and 19. Jurors 6 and 16 were both young. As Judge Hall observed, it is quite plausible that the prosecutor simply misspoke with respect to a juror’s numerical designation, an error defense counsel may also have committed. Id., at 688; 2 App. 9. It is a tenuous inference to say that an accidental reference with respect to one juror, Juror 19, undermines the prosecutor’s credibility with respect to Juror 16. Seizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor’s explanation was clearly not credible.

Second, the panel majority concluded that the trial court should have questioned the prosecutor’s credibility because of her “attempt to use gender as a race-neutral basis for excluding Jurors 016 and 019.” 365 F. 3d, at 684. Respondent’s trial occurred in August 1996, over two years after our decision in J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994), made clear that discrimination in jury selection on the basis of gender violates the Equal Protection Clause. Although the record contains a somewhat confusing colloquy on this point, it can be read as indicating that one of the prosecutor’s aims in striking Juror 16 was achieving gender balance on the jury. Concerned about the constitutionality of such a strike, the trial court made clear that it would not accept gender as a race-neutral explanation. The panel majority assigned the gender justification more weight than it can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates. that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race.

Finally, the panel majority believed to be unsupportable the prosecutor’s stated concern that Juror 16 might, as a young and single citizen with no ties to the community, be too tolerant of the crime with which respondent was charged. 365 F. 3d, at 680-682, 684. This was so, the majority concluded, because during voir dire Juror 16 replied affirmatively when asked if she believed the crime with which respondent was charged should be illegal and disclaimed any other reason she could not be impartial. Id., at 680. That the prosecutor claimed to hold such concerns despite Juror 16’s voir dire averments does not establish that she offered a pretext. It is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of a controlled substance. Accord, id., at 690 (Hall, J., dissenting). Even if the prosecutor was overly cautious in this regard, her wariness of the young and the rootless could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics. 2 App. 5, 14.

Viewing the panel majority’s concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor’s credibility regarding Juror 16’s alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor’s race-neutral justifications and conclude Collins had shown a Batson violation. Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on ha-beas review that does not suffice to supersede the trial court’s credibility determination.

The panel majority did not stop at the conclusion that the trial court rendered an unreasonable factual determination in light of the evidence presented. It further concluded that the state courts had unreasonably applied clearly established federal law as determined by this Court. 365 F. 3d, at 679; 28 U. S. C. § 2254(d)(1). The question whether a state court errs in determining the facts is a different question from whether it errs in applying the law. In this case there is no demonstration that either the trial court or the California Court of Appeal acted contrary to clearly established federal law in recognizing and applying Batson’s burden-framework. See 2 App. 14-15; App. H to Pet. for Cert. 114-116. The only question, as we have noted, is whether the trial court’s factual determination at Batson’s third step was unreasonable. For the reasons discussed above, we conclude it was not.

III

The panel majority’s attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA’s requirements for granting a writ of habeas corpus. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer,

with whom Justice Souter joins,

concurring.

Twenty years ago Justice Thürgood Marshall warned that the test of Batson v. Kentucky, 476 U. S. 79 (1986), would fail to ferret out unconstitutional discrimination in the selection of jurors. Id., at 102-103 (concurring opinion) (“The. decision today will not end the racial discrimination that peremp-tories inject into the jury-selection process”). In my view, history has proved Justice Marshall right. See Miller-El v. Dretke, 545 U. S. 231, 266-267 (2005) (Breyer, J., concurring). And today’s case, like Miller-El, helps to illustrate Batson’s fundamental failings.

For one thing, the prosecutor’s inability in this case to provide a clear explanation of why she exercised her peremptory challenges may well reflect the more general fact that the exercise of a peremptory challenge can rest upon instinct not reason. Insofar as Batson asks prosecutors to explain the unexplainable, how can it succeed? Miller-El, 545 U. S., at 267-268 (Breyer, J., concurring).

For another thing, the trial judge’s uncertainty about the legal validity of the exercise of peremptory challenges in this case may reflect the more general fact that, sometimes, no one, not even the lawyer herself, can be certain whether a decision to exercise a peremptory challenge rests upon an impermissible racial, religious, gender-based, or ethnic stereotype. Ibid. See also Batson, supra, at 106 (Marshall, J., concurring) (noting unconscious internalization of racial stereotypes). How can trial judges second-guess an instinctive judgment the underlying basis for which may be a form of stereotyping invisible even to the prosecutor? Miller-El, supra, at 267-268 (Breyer, J., concurring).

Finally, the case before us makes clear that ordinary mechanisms of judicial review cannot ensure Batson’s effectiveness. The reasons are structural. The trial judge is best placed to consider the factors that underlie credibility: demeanor, context, and atmosphere. And the trial judge is best placed to determine whether, in a borderline case, a prosecutor’s hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision. Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation. These circumstances mean that appellate courts will, and must, grant the trial courts considerable leeway in applying Batson. See Hernandez v. New York, 500 U. S. 352 (1991). As the present case illustrates, considerations of federalism require federal habeas courts to show yet further deference to state-court judgments. See 28 U. S. C. § 2254(d)(2) (state-court factual determination must stand unless “unreasonable”).

The upshot is an unresolvable tension between, on the one hand, what Blackstone called an inherently “‘arbitrary and capricious’” peremptory challenge system, Miller-El, supra, at 272 (Breyer, J., concurring) (quoting 4 W. Blackstone, Commentaries on the Laws of England 346 (1769)), and, on the other hand, the Constitution’s nondiscrimination command. Given this constitutional tension, we may have to choose. Miller-El, supra, at 273 (Breyer, J., concurring); Swain v. Alabama, 380 U. S. 202, 244 (1965) (Goldberg, J., dissenting) (“Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former”); Batson, supra, at 107 (Marshall, J., concurring) (same).

I have argued that legal life without peremptories is no longer unthinkable. Miller-El, supra, at 272 (concurring opinion) (citing, inter alia, the experience of England). I continue to believe that we should reconsider Batson's test and the peremptory challenge system as a whole. Nonetheless, because the Court correctly applies the present legal framework, I concur in its opinion.


author: Justice Souter

text:
    WILL et al. v. HALLOCK et al.
    No. 04-1332.
    Argued November 28, 2005
    Decided January 18, 2006

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

      Douglas Hallward-Driemeier argued the cause for petitioners. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, and Barbara L. Herwig.

      Allison M. Zieve argued the cause for respondents. With her on the brief were Brian Wolfman and Scott L. Nelson.

   Justice Souter

delivered the opinion of the Court.

The authority of the Courts of Appeals to review “all final decisions of the district courts,” 28 U. S. C. § 1291, includes appellate jurisdiction over “a narrow class of decisions that do not terminate the litigation,” but are sufficiently important and collateral to the merits that they should “nonetheless be treated as final,” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867 (1994) (internal quotation marks omitted). The issue here is whether a refusal to apply the judgment bar of the Federal Tort Claims Act is open to collateral appeal. We hold it is not.

I

The complaint alleges that Susan Hallock owned a computer software business that she and her husband, Richard, operated from home. After information about Richard Hal-lock’s credit card was stolen and used to pay the subscription fee for a child pornography Web site, agents of the United States Customs Service, investigating the Web site, traced the payment to Richard Hallock’s card and got a warrant to search the Halloeks’ residence. With that authority, they seized the Halloeks’ computer equipment, software, and disk drives. No criminal charges were ever brought, but the Government’s actions produced a different disaster. When the computer equipment was returned, several of the disk drives were damaged, all of the stored data (including trade secrets and account files) were lost, and the Halloeks were forced out of business.

In July 2002, Susan Hallock and her company brought an action against the United States under the Federal Tort Claims Act, invoking the waiver of sovereign immunity, 28 U. S. C. § 1346, and alleging negligence by the customs agents in executing the search. The merits of the claim were never addressed, for the District Court granted the Government’s motion to dismiss, holding that the agents’ activities occurred in the course of detaining goods and thus fell within an exception to the Act’s waiver of sovereign immunity, § 2680(e). Hallock v. United States, 253 F. Supp. 2d 361 (NDNY 2003).

While the suit against the Government was still pending, Susan Hallock filed this action against the individual agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging in her complaint that the agents had damaged her computers and thus deprived her of property including business income in violation of the Due Process Clause of the Fifth Amendment. After the District Court dismissed the first suit against the Government, the agents moved for judgment in the Bivens action, citing the judgment bar of the Tort Claims Act, that “the judgment in an action under [§] 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” § 2676.

The District Court denied the motion, holding that dismissal of the action against the. Government under the Tort Claims Act was solely on a procedural ground, and thus failed to raise the judgment bar. Hallock v. Bonner, 281 F. Supp. 2d 425, 427 (NDNY 2008). The Court of Appeals for the Second Circuit affirmed, after first finding jurisdiction under the collateral order doctrine. Hallock v. Bonner, 387 F. 3d 147 (2004). We granted certiorari to consider the judgment bar, 545 U. S. 1103 (2005), but now vacate for want of appellate jurisdiction on the part of the Court of Appeals.

II

The collateral order doctrine, identified with Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), is “best understood not as an exception to the ‘final decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of it.” Digital Equipment, supra, at 867 (quoting Cohen, supra, at 546). Whereas 28 U. S. C. § 1291 “gives courts of appeals jurisdiction over ‘all final decisions’ of district courts” that are not directly appealable to us, Behrens v. Pelletier, 516 U. S. 299, 305 (1996), the collateral order doctrine accommodates a “small class” of rulings, not concluding the litigation, but conclusively resolving “claims of right separable from, and collateral to, rights asserted in the action,” ibid, (internal quotation marks omitted). The claims are “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, supra, at 546.

The requirements for collateral order appeal have been distilled down to three conditions: that an order “ ‘[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.’ ” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993) (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978)). The conditions are “stringent,” Digital Equipment, supra, at 868 (citing Midland Asphalt Corp. v. United States, 489 U. S. 794, 799 (1989)), and unless they are kept so, the underlying doctrine will overpower the substantial finality interests § 1291 is meant to further: judicial efficiency, for example, and the “sensible policy ‘of avoiding] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.’” Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981) (quoting Cobbledick v. United States, 309 U. S. 323, 325 (1940)).

Accordingly, we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope. See, e. g., Digital Equipment, 511 U. S., at 868 (“[T]he ‘narrow’ exception should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered ...” (citation omitted)). And we have meant what we have said; although the Court has been asked many times to expand the “small class” of collaterally appeal-able orders, we have instead kept it narrow and selective in its membership.

A

Prior cases mark the line between rulings within the class and those outside. On the immediately appealable side are orders rejecting absolute immunity, Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982), and qualified immunity, Mitchell v. Forsyth, 472 U. S. 511, 530 (1985). A State has the benefit of the doctrine to appeal a decision denying its claim to Eleventh Amendment immunity, Puerto Rico Aqueduct, supra, at 144-145, and a criminal defendant may collaterally appeal an adverse ruling on a defense of double jeopardy, Abney v. United States, 431 U. S. 651, 660 (1977).

The examples admittedly raise the lawyer’s temptation to generalize. In each case, the collaterally appealing party was vindicating or claiming a right to avoid trial, in satisfaction of the third condition: unless the order to stand trial was immediately appealable, the right would be effectively lost. Those seeking immediate appeal therefore naturally argue that any order denying a claim of right to prevail without trial satisfies the third condition. But this generalization is too easy to be sound and, if accepted, would leave , the final order requirement of § 1291 in tatters. We faced this prospect in Digital Equipment, supra, an appeal from an order rescinding a settlement agreement: Petitioner asserted a “ ‘right not to stand trial’ requiring protection by way of immediate appeal,” analogizing the rescission to a denial of immunity. Id., at 869. We said no, however, lest “every right that could be enforced appropriately by pretrial dismissal [be] loosely ... described as conferring a ‘right not to stand trial.’” Id., at 873. Otherwise, “almost every pretrial or trial order might be called ‘effectively unreviewable’ in the sense that relief from error can never extend to rewriting history.” Id., at 872.

“Allowing immediate appeals to vindicate every such right would move § 1291 aside for claims that the district court lacks personal jurisdiction, that the statute of limitations has run, that the movant has been denied his Sixth Amendment right to a speedy trial, that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the com: plaint fails to state a claim. Such motions can be made in virtually every case.” Id., at 873 (citations omitted).

B

Since only some orders denying an asserted right to avoid the burdens of trial qualify, then, as orders that cannot be reviewed “effectively” after a conventional final judgment, the cases have to be combed for some further characteristic that merits appealability under Cohen; and as Digital Equipment explained, that something further boils down to “a judgment about the value of the interests that would be lost through rigorous application of. a final judgment requirement.” 511 U. S., at 878-879 (citing Van Cauwenberghe v. Biard, 486 U. S. 517, 524 (1988)). See also Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 502 (1989) (SCALIA, J., concurring) (“The importance of the right asserted has always been a significant part of our collateral order doctrine”).

Thus, in Nixon, supra, we stressed the “compelling public ends,” id., at 758, “rooted in . . . the separation of powers,” id., at 749, that would be compromised by failing to allow immediate appeal of a denial of absolute Presidential immunity, id., at 743, 752, n. 32. In explaining collateral order treatment when a qualified immunity claim was at issue in Mitchell, supra, we spoke of the threatened disruption of governmental functions, and fear of inhibiting able people from exercising discretion in public service if a full trial were threatened whenever they acted reasonably in the face of law that is not “clearly established.” Id., at 526. Puerto Rico Aqueduct, 506 U. S. 139, explained the immediate ap-pealability of an order denying a claim of Eleventh Amendment immunity by adverting not only to the burdens of litigation but to the need to ensure vindication of a State’s dignitary interests. Id., at 146. And although the double jeopardy claim given Cohen treatment in Abney, supra, did not implicate a right to be free of all proceedings whatsoever (since prior jeopardy is essential to the defense), we described the enormous prosecutorial power of the Government to subject an individual “to embarrassment, expense and ordeal . . . compelling him to live in a continuing state of anxiety,” id., at 661-662 (internal quotation marks omitted); the only way to alleviate these consequences of the Government’s superior position was by collateral order appeal.

In each case, some particular value of a high order was marshaled in support of the interest in avoiding trial: honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual. That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is “effectively” unreviewable if review is to be left until later. Coopers & Lybrand, 437 U. S., at 468 (internal quotation marks omitted).

C

Does the claim of the customs agents in this case serve such a weighty public objective that the judgment bar should be treated as an immunity demanding the protection of a collateral order appeal? One can argue, of course, that if the Bivens action goes to trial the efficiency of Government will be compromised and the officials burdened and distracted, as in the qualified immunity case: if qualified immunity gets Cohen treatment, so should the judgment bar to further litigation in the aftermath of the Government’s success under the Tort Claims Act. But the cases are different. Qualified immunity is not the law simply to save trouble for the Government and its employees; it is recognized because the burden of trial is unjustified in the face of a colorable claim that the law on point was not clear when the official took action, and the action was reasonable in light of the law as it was. The nub of qualified immunity is the need to induce officials to show reasonable initiative when the relevant law is not “clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982); ef. Saucier v. Katz, 533 U. S. 194, 202 (2001); a quick resolution of a qualified immunity claim is essential.

There is, however, no such public interest at stake simply because the judgment bar is said to be applicable. It is not the preservation of initiative but the avoidance of litigation for its own sake .that supports the judgment bar, and if simply abbreviating litigation troublesome to Government employees were important enough for Cohen treatment, collateral order appeal would be a matter of right whenever the Government lost a motion to dismiss under the Tort Claims Act, or a federal officer lost one on a Bivens action, or a state official was in that position in a case under 42 U. S. C. §1983, or Ex parte Young, 209 U. S. 123 (1908). In effect, 28 U. S. C. § 1291 would fade out whenever the Government or an official lost an early round that could have ended the fight.

Another difference between qualified immunity and the judgment bar lies in the bar’s essential procedural element. While a qualified immunity claim is timely from the moment an official is served with a complaint, the judgment bar can be raised only after a case under the Tort Claims Act has been resolved in the Government’s favor. If a Bivens action alone is brought, there will be no possibility of a judgment bar, nor will there be so long as a Bivens action against officials and a Tort Claims Act against the Government are pending simultaneously (as they were for a time here). In the present case, if Susan Hallock had brought her Bivens action and no other, the agents could not possibly have invoked the judgment bar in claiming a right to be free of trial. The closer analogy to the judgment bar, then, is not immunity but the defense of claim preclusion, or res judicata.

Although the statutory judgment bar is arguably broader than traditional res judicata, it functions in much the same way, with both rules depending on a prior judgment as a condition precedent and neither reflecting a. policy that a defendant should be scot free of any liability. The concern behind both rules is a different one, of avoiding duplicative litigation, “multiple suits on identical entitlements or obligations between the same parties.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402, p. 9 (2d ed. 2002) (internal quotation marks omitted). But this rule of respecting a prior judgment by giving a defense against relitigation has not been thought to protect values so great that only immediate appeal can effectively vindicate them. As we indicated in Digital Equipment, in the usual case, absent particular reasons for discretionary appeal by leave of the trial court, a defense of claim preclusion is fairly subordinated to the general policy of deferring appellate review to the moment of final judgment. 511 U. S., at 873.

The judgment bar at issue in this case has no claim to greater importance than the typical defense of claim preclusion; and we hold true to form in deciding what Digital Equipment implied, that an order rejecting the defense of judgment bar under 28 U. S. C. § 2676 cries for no immediate appeal of right as a collateral order.

We vacate the judgment of the Court of Appeals and remand the case with instructions to dismiss the appeal for lack of jurisdiction.

It is so ordered.

      The right to be free of double jeopardy is subject to an analogous condition, that jeopardy have attached in a prior proceeding, Monge v. California, 524 U. S. 721, 728 (1998), a characteristic that distinguishes the Fifth Amendment right from other immunities mentioned above. But, as we explained, double jeopardy deserves immunity treatment under §1291 owing to the enormous advantage of a Government prosecutor who chooses to go repeatedly against an individual.